Supreme Court sets aside prison committal for contempt where compliance with waste removal order became impossible due to ownership disputes.

THE SUPREME COURT

Record No. 2013 No. 411

Fennelly J.

McKechnie J.

Laffoy J.

BETWEEN:

THE COUNTY COUNCIL FOR THE COUNTY OF LAOIS

Applicant/Respondent on the Appeal

- and -

NOEL HANRAHAN, GERALDINE HANRAHAN AND COLM HANRAHAN

Respondents/Third Named Respondent as Appellant on the Appeal

JUDGMENT of Mr. Justice Fennelly delivered the 14th day of March, 2014.

1. The appellant, Mr Colm Hanrahan, is appealing against a High Court order committing him to prison for contempt of court in failing

to obey a High Court order requiring him to remove large volumes of polluting waste from his parents’ family farm in County Laois. This

judgment concerns the appeal of the appellant, against a High Court judgment committing him to prison for contempt of court.

2. The order (hereinafter “the contempt order”) was made on 17th September 2013 by Hedigan J. It concerned the appellant’s

contempt of an order (hereinafter “the original order”) made by Hedigan J on 24th May 2012 pursuant to s. 58 of the Waste

Management Act, 1996. That order required all three of the above named respondents to discontinue holding, recovery or disposal of

waste on lands in Folio 1905 County Laois and to remedy the effects of depositing of waste which had already taken place. All this

was to be done in accordance with the schedule to the order.

3. The lands involved consist of a farmyard and surrounding lands, registered in Folio 1905 of the Register, County Laois. They are at

Graigueadrisly, Rathdowney, Co. Laois. The registered owners of the lands were, at the date of the making of the order, the first two

respondents. The appellant is their son. The first-named respondent has sadly died since the commencement of the proceedings. The

appellant had a lease of the lands for a term of seven years from 1st October 2007, though he claims that a family dispute prevented

him from occupying them from 2009 up to the date of his father’s death in May 2013.

4. On 6th April 2011 Laois County Council (hereinafter “the Council”), the applicant and the respondent to the appeal, received an

anonymous complaint to the effect that illegal disposal of waste was taking place in an old quarry on the lands. Officers of the Council

discovered, on inspection, when they entered the farmyard, that there was a strong, foul smell consistent with waste disposal on an

adjacent site. There were tractor tracks leading from the yard into the surrounding lands. Waste materials had been deposited on an

extensive area of approximately one acre at the top of a field which was approximately 150 yards from the farmyard. The waste

comprised: (a) an area of domestic, processed waste; (b) an area of mixed waste including construction and demolition waste, waste

wood plastic and metal; (c) windblown litter over the site and field generally.

5. The appellant, when contacted by telephone by the Council, said that he had leased the site from his father, but that he had

separated from his wife and was no longer residing there. He said that he had entered into an agreement with another named person

for use of the site as a quarry and for the removal of sand. An attempt was made to arrange a meeting with this other person but he

failed to attend.

6. Further examination disclosed that the deposited waste ranged up to a depth of 2 metres. A foul smell emanated from a number of

trial pits. The Council commissioned a report from OCM Environmental Consultants. They excavated 21 trial pits. They collected six

waste and topsoil samples for analysis. Some of the principal findings were as follows.

7. The site is a former sand and gravel pit covering an area of approximately 0.95 hectares. It is in an agricultural area predominantly

used for animal grazing. The waste was deposited over approximately 0.4 hectares. The sub-soil is comprised predominantly of sands

and gravels, which have a high permeability. Overgrown areas appeared to have been cleared in advance of the deposit of waste.

The waste was not covered, was warm to touch and had a very strong odour, consistent with that of municipal solid waste. Its

average depth was 1.15 m. The waste comprised predominantly shredded plastic, generally uniform size and originally bottles, food

containers, toothbrushes and minor amounts of organic waste. It was consistent with being Municipal Solid Waste that had undergone

processing. Following scientific testing, the report reached the conclusion that the waste was not inactive and that it had the

potential to generate a polluting leachate that is stronger than that produced in a non-hazardous waste landfill. If left in place it has

the potential to migrate to the groundwater system and cause significant pollution and possibly impact on down gradient receptors.

The site was assigned a Moderate risk rating. The primary risk was considered to be to the underlying aquifer, assumed, according to

the report, to be a regionally important karst aquifer.

8. The likely a volume of the waste was assessed as being from 960 to 1840 tonnes. The report recommended that, in order to

eliminate the risk to groundwater, the waste should be excavated as soon as possible and disposed of at a suitably licensed facility.

9. By Notice of Motion date 17th November 2011, the Council applied to the High Court for orders against all three respondents

requiring them to discontinue the holding, recovery or disposal of waste on the lands, to mitigate the effects of what had already

taken place and that they excavate and remove all waste held on the lands and dispose of it at a suitably licensed facility. It

estimated the cost of the required remedial works to be of the order of €312,000. The Notice of Motion was served personally on the

appellant.

10. Only the first-named respondent filed an affidavit in response to the Notice of Motion. In effect, he said that he had retired from

farming, that the lands had been leased to the appellant and that he knew nothing about any depositing of waste. Indeed, it is a

feature of the case that nobody has admitted to any knowledge of the depositing of waste on the land. The first two respondents

were represented at the hearing of the Notice of Motion by counsel. The appellant did not appear.

11. On 24th May 2012, the High Court made an order, pursuant to s. 58 of the Waste Management Acts 1996-2011 (as amended)

requiring that the respondents “discontinue with immediate effect the holding recovery or disposal of waste” at the lands. It further

ordered that the respondents “remedy the effects of the holding of waste at the said lands……… by the removal of such waste and

remediation of said lands…,” in accordance with a schedule and timescale set out in the order. Excavation works were to commence

by 9th July 2012 and remediation was to be completed no later than 1st September 2012.

12. It is common case that, although the restraining aspect of the order has been observed and no further waste depositing has

taken place, no works of remediation whatever have in fact taken place. The polluting waste has remained on the land undisturbed.

13. By Notice of Motion dated 16th April 2013, the Council applied to the High Court for orders for the attachment and committal of all

three respondents. The first named respondent died in May 2013. The Council has not pursued the contempt application against the

second named respondent, who is in very poor health, although the original order remains in force against her.

14. As already stated, the appellant did not appear at the hearing of the original notice of motion. There was great difficulty in

serving him with a copy of the order either at his parents’ home or at his own address nearby. There were, however, several

telephone contacts with him and he now acknowledges that he was aware of the order from early or mid-June 2012. It is also the

fact that, on 19th July 2012, the solicitors who had up to that time been acting only for the first two respondents served notice of

appeal to this court against the original High Court order also on behalf of the appellant. That appeal has, however, now been

withdrawn (24th January 2014). It should be noted, however, that, as the Counsel points out in its written submissions, the process

of conduct of the appeal was itself subject to delay and lack of cooperation. Two motions had to be brought to dismiss for want of

prosecution before the appeal was finally withdrawn.

15. The grounding affidavit on behalf of the council says that nothing whatever had been done (up to 16 April 2013, the date of

swearing the affidavit) to remediate the lands. The waste has remained on-site in a more or less unchanged condition since in or

about April 2011. Certainly, no active steps of any kind have been taken to remove it.

16. The motion for attachment and committal was adjourned, following the death of the first-name respondent, to 10th June 2013.

The motion was then listed for hearing on 8th July 2013. Messrs. Kenny Stephenson Chapman, Solicitors, came on record and entered

an appearance for the appellant on 8th July 2013. The motion was adjourned to 15th July to allow the appellant to retain an

environmental consultant and an authorised waste contractor and to set out the work which required to be done. He retained Mr

Michael Reilly of Michael Reilly & Associates Consulting Engineers and, it seems, two other professionals, to prepare a plan for the

remediation of the site in compliance with the original order.

17. Mr Reilly’s affidavit of 25th July 2013 appeared, at least, and for the first time, to set out a programme of proposed remediation.

Consultants had been retained. It was explained that there had been great difficulty in retaining a licensed waste haulier and licensed

waste facility. Nonetheless, a plan for haulage and disposal had been agreed. Mr Reilly referred to a Waste Management Plan for the

remediation works, which, it was claimed, comprehensively set out the action to be undertaken, together with details of future

actions to remediate the site as well is a timetable for the works. It was even said that the excavation and stockpiling of the waste

material had commenced on 22nd July 2013 with a view to beginning the removal and transport from the site on 23rd July. This could

not, however, proceed until a road traffic management plan had been approved by the Council.

18. In the event, this all became academic. On 31st July 2013, the appellant swore his first affidavit in the proceedings. He admitted

that he had become aware of the original order in or about early to mid June 2012. He said that there had been compliance with the

prohibitory provisions of the order but accepted that no remedial works had been performed. He also expressly bowed to the

inevitable and accepted that he was in contempt of the order of the High Court.

19. He explained his failure to comply with the order, firstly, by reference to personal and family difficulties which frustrated his ability

to deal with or to have access to the lands. He referred to Mr Reilly's affidavit and claimed that he had dedicated himself to obtaining

all necessary expert assistance in remediating the lands. He claimed to have engaged in a collaborative manner with the Council.

20. He referred to his financial position as follows:

“I am not a man of great means, and have only limited assets to apply to the works. In this regard, my assets are

comprised of my family home, jointly held with my wife and subject to a mortgage, a household account in joint

names, the balance of which does not exceed €3000, and my personal car, valued at approximately €10,000.

There is also an outstanding judgment debt against me in favour of AIB, in the sum of approximately €165,000,

which has the effect of preventing the borrowing any further sums. Despite my meagre means, I have committed

myself to expanding the money is required, a majority of it comprising personal borrowings, in an effort to

remediate the lands and comply with the Order of this Court.”

21. The most important point, however, to emerge from this affidavit is that the appellant said that he had miscalculated the cost of

disposal of the waste. He mentioned having received written confirmation from a landfill facility that it would cost €51 per tonne to

dispose of the waste. He said that he had been committed to the plan, on that basis. However, he said that, on the evening of 25th

July, he had been informed that a levy in the sum of €75 per tonne was chargeable on the waste facility operator. He had understood

that any levy was included in the payment plan, but this was not now the case. The levy would add a figure ranging from a minimum

of €72,000 to a maximum of €138,000 to the cost of disposal. He continued:

“There is no prospect of me being able to discharge such a cost myself and I have exhausted all sources of

personal borrowings putting myself in a position to pay for the remedial works. In the circumstances, in an effort

to ensure my compliance with the Order, I made considerable efforts to raise additional finance to cover same. I

lodged a number of loan applications with lenders with a view to arranging a loan for saying, but all such

applications have been refused.”

He exhibited one letter of refusal of finance from a bank.

22. Under the heading, “Proceedings Could Be Instituted against the Dumper,” the appellant purported to identify the party which he

believed to have been responsible for the dumping on the lands, namely Greyhound Waste Group. He said that he had accelerated his

enquiries and claimed that there was further evidence to support a claim against that company. He said that he had been provided

with documentary evidence demonstrating that the waste originated at a Greyhound facility. He did not produce any of that

evidence. Nor did he provide any explanation as to how the company named could have gained access to the lands.

23. He said that he had instructed his solicitor and counsel in relation to issuing proceedings against Greyhound Waste Group. No

other evidence of the responsibility of that company has been produced.

24. The motion for attachment and committal was adjourned from 31st July for hearing during the vacation. It came on before

Hedigan J on 16th September. On that day, the appellant swore a further affidavit, directed principally to explaining generally the

circumstances in which he claimed not to have enabled to obtain access to the lands. He said that, in spite of the lease of the lands

to him, his parents continued to occupy the farmhouse and that his father had continued to manage the day-to-day operation of the

farm. He explained that it was due to his bad relationship with his father that he was in practice unable to visit the lands at that time.

He said that he had no "first-hand knowledge of the operations on the farm in or around the time of the dumping.” he said that his”

belief was that it had arisen from an arrangement of his father had had with the gentleman mentioned earlier. He again mentions the

Greyhound Group and his proposed litigation against that company.

25. Hedigan J delivered a judgment ex tempore on 17 September 2013. He expressed regret at the pass that things had come to and

his reluctance to make any order providing for imprisonment, even on the basis of an "unless" order. He said:

“Nevertheless the conduct of the respondents as previously found by this Court involved a serious case of

pollution. There is a duty on the court to the community at large and under international law to address cases

were pollution has been caused by particular persons and to support the local authority taking action.”

26. Firstly, he found the proposed case against Greyhound at that stage to be thoroughly unconvincing. He considered that it would

be an abdication of the duty of the court to adjourn the matter pending the pursuit of such litigation.

27. Secondly, he considered the financial condition of the appellant. He considered that "the thinnest of evidence ha[d] been put

before this Court on this point." If such a case were to be made it would normally require that “detailed information as to the

[appellant’s] assets should be put before the court including details of income, tax returns etc.” He proceeded as follows:

“It is also important to note that the Order was made against all three Respondents who are also bound by it

including……… the second named respondent, who now appears to be the sole owner of the 100 acre farm. The

court is not prepared to accept any argument about impecuniosity with the farm in the background. The Court is

not prepared to accept this argument on the part of the [appellant] particularly as doing so would involve the

taxpayer paying for the remediation of the pollution rather than the polluter. It is not for the County Council to

pick up the tab in a case of this kind.”

28. The learned judge then noted that counsel for the appellant had submitted that an Order for Contempt should be coercive and

not punitive. He said:

“The view of this court is that such an Order of Attachment or Committal involves a mixture of both elements.

The reality is that an "unless" Order provides the means by which the third named Respondent can deal with the

situation: the key to the jail is in the hands of the third named respondent….”

29. The learned judge quoted a passage from my judgment in IBRC v Quinn, in which I had, in turn, cited passages from the judgment

of Finnegan P in Shell E & P Ltd v. McGrath & Others [2007] 1 I.R. 671. These are the passages which explain the jurisdiction of a

court to commit to prison by way of punishment for contempt even in civil cases. He explained the terms of the order actually made

as follows:

“Accordingly I am going to make an "unless" Order in the terms as sought and I will commit the [appellant] to

prison for contempt for six months imprisonment in Mountjoy unless he complies with the terms of the order in

terms of the draft Order within the period of time stipulated in the draft Order as presented to this Court.”

30. The learned trial judge was here referring to the following paragraph taken from a draft of the order which had been submitted by

the Council in advance of the hearing:

“IT IS ORDERED that the [appellant], having been adjudged to be guilty of contempt of this Court by reason of

such default aforesaid, be committed to such contempt to Mountjoy Prison to be detained for a period of[to be

determined by the Court] or for such further period as this Court shall direct UNLESS the provisions laid down in

the Schedule Herein Are Complied with in Full and in Accordance with the Time Limits Therein Specified…”

31. The schedule there referred to was an adaptation, in time terms, and in much greater detail of the order of 24th May 2012. The

operative the part of the order of the High Court stated:

“The Court doth adjudge that the [appellant] is guilty of contempt of this Court by reason of such default and that

he be committed for such contempt to Mountjoy Prison to be detained therein for a period of six months or such

further period as this Court shall direct UNLESS the provisions laid down in the Schedule hereinafter impliedly to in

full and in accordance with the time limits therein specified.”

32. The appellant filed a Notice of Appeal containing nineteen grounds of appeal against the order of the High Court on 30th

September 2013. These grounds may, having regard to the submissions made at the hearing of the appeal, be distilled as follows:

1. the High Court erred in imposing a punitive order on the appellant, in particular in making what was described as

an “ unless” order on a punitive rather than a coercive basis;

2. the High Court failed to have any or any adequate regard to the uncontradicted evidence of the appellant

regarding his inability, on financial grounds, to comply with the order of the Court, in particular by acceding to

assertions during submissions made by counsel for the respondent;

3. the High Court committed the appellant for contempt by reference to the assets owned by or available to the

second-named respondent;

4. in failing to have proper regard to the consequences of an order for committal on the appellant, his liberty and his

livelihood.

33. Counsel for the appellant submitted to this Court that a high threshold is required to activate the Court’s jurisdiction to impose a

punitive, fixed term sentence on a contemnor. There must be a breach of the court’s order such that the contempt is “outrageous”,

“flagrant” or rises to the level of “serious misconduct.” The appellant’s conduct, though admittedly amounting to contempt of court,

was at the lower end of the scale and did not merit any of the above descriptions and did not call for the imposition of a punitive

sentence of imprisonment. In particular, it cannot be said that the appellant has been guilty of wilful non-compliance with the order.

Attention is drawn, in particular, to the statement of the learned trial judge that:

“It cannot be said that the Third Named Respondent has not tried to deal with the remediation of his parents’

lands to meet the terms of the Order in this case and has taken some steps to do so but this came to a complete

stop when the cost of the statutory levy was considered.”

34. It was submitted that the learned trial judge placed undue emphasis on the prior unlawful action of dumping on the lands, which

were not the cause of, nor a factor in the appellant’s contempt of court. The Court, on a committal application, should concern itself

with the contemnor’s conduct in relation to the order rather than with extraneous matters unconnected to the contempt. It was,

nonetheless, conceded that the court is not bound to consider the matter in a manner that is wholly divorced from the circumstances

in which the primary order of which the contemnor is in breach was made.

35. Counsel for the appellant complained of the way in which the judge treated what was described as a “brief synopsis” of his

finances put forward in order to establish that he was unable to comply with the original order due simply to his inability to discharge

the statutory levy. It was pointed out that no evidence to contradict the appellant’s evidence was adduced on behalf of the Council.

What occurred was that counsel on behalf of the Council, however, expressed scepticism concerning the plausibility and bona fides of

the explanation proffered by the appellant. It was said that counsel for the appellant stated, in the High Court, in response that if this

was a matter of concern to the Council, or indeed to the court, he would seek a brief adjournment to have the appellant swear an

affidavit of means. It is not clear, however, that any formal application for an adjournment was made on 16th September 2013.

36. Counsel invoked the principle that the court should not make an order committing a person to court for contempt of an order

when it was demonstrable that it was impossible for that person to comply with the order. Reference is made to the decision of Clarke

J in Aranbel Limited v. D’Arcy, [2010] 3 I.R. 769, where a purchaser in a specific performance action was unable to complete the

purchase. Counsel also referred to the decision of this court in Dublin City Council v. McFeely [2013] 1 I.L.R.M. 40. It was submitted

that the affidavit evidence before the Court, uncontroverted by the Council, showed that the appellant had the means to carry out

the remedial works, but was unable to ensure the proper and lawful disposal of the waste due to the imposition of the statutory levy

on landfill waste.

37. It should be added that, following the making of the committal order by the High Court on 17th September 2013, the Appellant,

sought to address the concerns expressed by the learned judge of the High Court. He swore an additional affidavit setting out his

financial circumstances in greater detail. This affidavit was before this Court but was not, of course, before the High Court.

38. Counsel for the appellant complains, as a separate matter, that it was quite inappropriate for at the learned judge to take into

account the ownership of the family farm by his mother, as a ground for rejecting his claimed financial inability to comply with the

order. In doing so, the learned judge was committing the appellant to prison at least partly on the basis of the presumed ability of a

separate person, who is no longer a party to the contempt application, to comply with the order. This was not a point made by or on

behalf of the Council. The appellant did not have any opportunity to respond, by affidavit or otherwise.

39. The Council, in response emphasises, firstly, the seriousness of the event of waste dumping on the lands and, secondly, the

delays and invasions of the appellant. There have been no other efforts. With regard, in particular, to the alleged efforts made to

pursue Greyhound, as the person ultimately responsible for the waste, this suggestion was first made by fax dated 7th August 2012,

but received on 7th September 2012 (after the last date for completion of the remediation required by the Section 58 Order had

passed). The Appellant failed to respond to a request for particulars about his suggestion that Greyhound was responsible.

Proceedings were not issued until after the making of the contempt order in the High Court. The learned judge described this aspect

of the appellant's case as wholly unconvincing.

40. The Council submits that the order of the High Court in the Contempt Motion was an appropriate and proportional means of

dealing with the failure of the appellant to comply with the terms of the original Court Order. The Council specifically submits that it

was necessary and appropriate to bring a Motion for attachment and committal which has given rise to a penal sanction being

imposed on the appellant for the purpose of coercing the appellant into complying with the terms of the Court Order: the imposition of

a fixed term of imprisonment was, it is submitted, appropriate and it was made clear on a number of occasions that this was the

course of action that would be taken by the Court. The Council, in written submissions, addresses the imposition of the fixed term of

imprisonment as a means of coercing the appellant into compliance as follows:

"In the event that the Appellant’s financial circumstances changed it would have been open to the Appellant to

come back to Court to request the Court to vary the sanction previously imposed: however, this is entirely

theoretical in the present situation where no such change of circumstances has arisen, and the imposition of the

fixed term penalty was appropriate in all the circumstances of the case.”

41. The Council explains the learned judge's references to the farm being owned by the appellant’s mother, as being indicative of a

view being taken by the Court that other members of the appellant’s family were involved in the wrongdoing which gave rise to the

making of the original order and of a suggestion that it was open to the appellant to take appropriate steps to have some financial

contribution obtained from the appellant’s mother or his father’s estate, as a means of addressing the financial pressures arising from

the requirement to have remedial works carried out on the site.

42. Relating to the argument based on impossibility of compliance with the order for financial reasons, the Council submits that there

is a very heavy burden on a person seeking to establish impossibility. The burden was on the appellant to supply any evidence

available to him to prove impossibility. It was open to the court to discount the information provided and the court was not obliged to

adjourn the matter.

43. In resolving this appeal, it seems to me that the first and most important matter to be addressed is the imposition by the order of

the High Court of a sentence of six months imprisonment by way of punishment in circumstances where the Court described this as an

“unless” order so that, in effect, the appellant would not have to serve the sentence of imprisonment if he complied with the original

order.

44. Before expressing my opinion on this essentially legal issue, it is appropriate to make some reference to the general background.

45. Firstly, it is an inescapable and shocking fact that a huge amount of deleterious and polluting waste material was deposited on

the lands. The volume has been estimated as being between 960 and 1840 tonnes. It is active and capable of polluting the

groundwater. It emits foul and offensive smells. This was, of course, totally illegal.

46. Secondly, no explanation whatsoever has been provided for how this occurred. It necessarily occurred over a period of time. The

site of the disused quarry, where the dumping took place, is only some 150 yards from the farmyard. It is simply impossible to believe

that nobody knew this was happening. Only the vaguest and most unconvincing explanations have been provided.

47. Thirdly, this offensive and polluting waste has been on the land since at least April 2011, when the Council received the

anonymous complaint. Nobody has done anything to remove the waste. The appellant, in particular, has conspicuously failed to face

up to his responsibilities. Although aware of the order, as he admits, from early to mid June 2012, he did nothing whatever for the full

period of a year following. While not wishing to pass final judgment on his suggested identification of Greyhound as the source of the

waste, it is a striking fact that he has produced no scintilla of evidence to back up this suggestion.

48. It is in this context that I comment on the appellant's argument that the learned judge laid undue emphasis on prior unlawful acts

as distinct from the acts of contempt of court. It is, of course, true that an order of committal for contempt is made precisely for

that reason, i.e., that the contemnor has acted in defiance of an order of the court and not for the act which led to the original order

being made. The nature of the contempt cannot, however, be considered in isolation from its subject matter. The more serious the

subject matter, the more serious the contempt.

49. The law with regard to contempt of court has traditionally made a clear distinction between criminal contempt, on the one hand,

and civil contempt, on the other. The object of criminal contempt is punitive; it is to uphold the law generally and the authority of the

courts. The object of civil contempt is coercive: it is to enable one party to litigation to ask the court to compel another party to

obey an order of the court which the first party has obtained. These categories are not entirely mutually exclusive but they are still

the basic guide.

50. O’Dalaigh C.J., in a well-known passage in his judgment in Keegan v de Burca [1971] IR 223, explained the basis distinction as

follows:

“Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in

facie curiae , words written or spoken or acts calculated to prejudice the due course of justice or disobedience to

a writ of habeas corpus by the person to whom it is directed — to give but some examples of this class of

contempt. Civil contempt usually arises where there is a disobedience to an order of the court by a party to the

proceedings and in which the court has generally no interest to interfere unless moved by the party for whose

benefit the order was made. Criminal contempt is a common-law misdemeanour and, as such, is punishable by

both imprisonment and fine at discretion, that is to say, without statutory limit, its object is punitive ……Civil

contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party

committed to comply with the order of the court, and the period of committal would be until such time as the

order is complied with or until it is waived by the party for whose benefit the order was made. In the case of civil

contempt only the court can order release but the period of committal cannot be commuted or remitted as a

sentence for a term definite in a criminal matter can be commuted or remitted pursuant to Article 13, s. 6, of the

Constitution.”

51. It is useful to recall the subject matter of Keegan v de Burca. The High Court had made an interlocutory order restraining the

appellant from entering upon or occupying the plaintiff's property. An application was brought for her committal for contempt of that

order. At the hearing of the motion she refused to answer a relevant question put to her by the President of the High Court. The

judge thereupon sentenced her to be imprisoned “until she purge her said contempt.” Counsel for the appellant in that case

submitted that that the refusal to answer a relevant question in court is criminal contempt and, therefore, that the President had

been in error in imposing a sentence of imprisonment of indefinite duration instead of a determinate sentence. This court held, in

remitting the matter to the High Court for sentence, that the appellant had been guilty of a criminal contempt in the face of the court

and that, accordingly punishment by imprisonment should be imposed by sentencing her to imprisonment for a period of definite

duration.

52. O’Dalaigh C.J, in the course of his judgment cited a number of authorities for the proposition that a punishment for criminal

contempt must be for a fixed term. For example, at page 228 he cited from a judgement of Mathew J. in In re Davies (1888) 21 Q.B.D.

which included the following:

“So where a witness refuses to give evidence in obedience to a subpoena, he may be committed for contempt.

The commitment in such cases is described by Willes, J., as a sentence upon a summary conviction for an offence

against the law, and in the view of that very learned judge a commitment for a time certain is a correct, 'if not

the only correct course': see Ex parte Fernandez [(1861) 10 C.B.N.S. 3] A commitment until the offender

consented to give evidence, would not, in my judgment, be the proper order to make.”

53. Keegan v de Burca is clear authority, therefore, for the proposition that a committal for criminal contempt must be fro a definite

period. It was impermissible to impose a term of imprisonment for an indefinite period or until the contemnor purge the contempt.

54. This essential structure of analysis was followed by Finlay P in his judgment in State (Commins) v McCrann [1977] I.R. 78 at page

89:

“The major distinction which has been established over a long period and by a long series of authority between

criminal and civil contempt of court appears to be that the wrong of criminal contempt of court is the

complement of the right of the court to protect its own dignity, independence and processes and that,

accordingly, in such cases, where a court imposes sentences of imprisonment its intention is primarily punitive.

Furthermore, in such cases of criminal contempt the court moves of its own volition, or may do so at any time.

In civil contempt, on the other hand, a court only moves at the instance of the party whose rights are being infringed and who has, in

the first instance, obtained from the court the order which he seeks to have enforced. It is clear that in such cases the purpose of

the imposition of imprisonment is primarily coercive, for that reason it must of necessity be in the form of an indefinite imprisonment

which may be terminated either when the court, upon application by the person imprisoned, is satisfied that he is prepared to abide

by its order and that the coercion has been effective or when the party seeking to enforce the order shall for any reason waive his

rights and agree, or consent, to the release of the imprisoned party.”

55. In Ross Co. Ltd v Patrick Swan [1981] 1 I.L.R.M. 416, O’Hanlon J dealt with the case are two members of the executive of a

prominent trade union were continuing to act in defiance of the court order. O’Hanlon J followed a statement of Denning MR in

Danchevsky v Danchevsky [1974] 3 All ER 934 to the effect that the power to committed to prison for contempt of court in civil

proceedings, for disobedience to the court's orders, was a jurisdiction that should not be exercised when it is unlikely to produce the

desired result and where there is some reasonable alternative course available instead of committal. In that case, O’Hanlon J found

the alternative by suggesting a prosecution pursuant to the provisions of the Prohibition of Forcible Entry and Occupation Act, 1971.

56. In more recent times, the courts have identified a hybrid type of case, a case where an application is made on the civil side for

attachment and committal that the court decides that the behaviour of the respondent calls for the imposition of punishment over

and above the coercive purpose of the application.

57. Finnegan P. in Shell E & P Ltd v. McGrath & Others [2007] 1 I.R. 671, following an exhaustive review of the authorities, made a

statement which has received approval in several later cases. I cited parts of the statement in my own judgments in Irish Bank

Resolution Corporation v. Quinn [2012] IESC 51 and Dublin City Council v. McFeely [2013] 1 ILRM 40. Firstly, in a passage at page

687, Finnegan P considered the essential question of jurisdiction:

“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 Ó Dálaigh C.J. in Keegan v. de Burca [1973] I.R. 223 and in In Re Haughey [1971]

I.R. 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 I.R. 67 which left open the

question as to whether civil contempt is exclusively, as distinct from primarily, coercive in nature. In Ross Co. Ltd.

v. Swan [1981] I.L.R.M. 416, 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 Q.B. 214 and Danchevsky v. Danchevsky

[1975] Fam. 17. It is also supported by Jennison v. Baker [1972] 2 Q.B. 52, Phonographic Performance Ltd. v.

Amusement Caterers (Peckham) Ltd. [1964] Ch. 195 and by the passage which I quoted from Halsbury.

58. Finnegan P next remarked on the power of the court to imprison for an indefinite period for civil contempt for coercive purposes

was a jurisdiction to be exercised sparingly. The following passage returns to the circumstances in which a court may impose a

sentence of imprisonment in cases of civil contempt:

“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 [1972] 2 Q.B. 52,

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 nought. 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."

59. On the basis of these authorities, I am satisfied that the principles affecting the exercise of the jurisdiction to punish in cases of

civil contempt are as follows:

i) It will normally be a matter for the court to decide of its own motion whether the case is one which justifies the

imposition of punishment, which may be a fine or a term of imprisonment, although there may be cases involving

matters of purely private interest where the court may be invited to exercise the jurisdiction,

ii) The circumstances justifying the imposition of punishment will almost always include an element relating to the

public interest, including the vindication of the authority of the court. The object is punishment, not coercion.

iii) A court should impose committal by way of punishment as a last resort. The contempt must amount to serious

misconduct involving flagrant and deliberate breach of a court order. Mere inability to comply will not amount to

serious misconduct.

iv) Committal by way of punishment inherently relates to conduct which has already taken place, not to future

conduct. A person cannot be punished for his future conduct: that would involve preventive detention.

v) Any imprisonment must be for a fixed term.

60. It is true that, even in cases of purely coercive orders, there is an element of punishment. It is by committing the contempt or to

prison that the court secures the observance of its orders. However, when a term of imprisonment is imposed by way of punishment,

the above principles apply.

61. It is inescapable that the punishment was imposed in this case for the purpose of coercion. Both the terms of the order and the

explanation of it in the judgment show that the appellant was committed to prison for a fixed term of six months unless he complies

with the terms of the order. The actual terms are that he is committed “for a period of six months or such further period as this Court

shall direct UNLESS the provisions laid down in the Schedule hereinafter impliedly to in full and in accordance with the time limits

therein specified.” The appellant is, firstly, committed to prison for six months, unless he complies with the order. Moreover, the court

retains the power to impose a further periods of imprisonment on the same terms. The learned judge explained: “the key to the jail is

in the hands of the” appellant. This is not a permissible type of order. It unacceptably blurs the line between civil and criminal

contempt.

62. For that reason, the order should be discharged and set aside. I do not, however, accept the submission made on behalf of the

appellant that the order should simply be discharged. I would remit the matter to the High Court for further consideration. It would

then be a matter for that Court to decide whether, in the light of the principles outlined above, the conduct of the appellant has

amounted to such serious defiance of the order of the court as to merit the imposition of six months or any other term of

imprisonment by way of punishment.

63. Furthermore, a new hearing in the High Court would provide the opportunity for both parties to the remedy gaps in the evidence.

On the one hand, the appellant furnished evidence with regard to his financial affairs at an extremely late stage. Even then, it was

sketchy at best. On the other hand, the Council did not file any affidavit evidence to contradict that of the appellant on these

matters. A matter which clearly influenced the learned judge was the ownership of the farm. It would not appear to be just to

penalise the appellant for the fact that his mother is the owner of the farm, at least without further exploration of this issue. The

appellant was, at the least, entitled to some notice that this was a matter under consideration. It is understandable that the Council

did not wish to proceed against the second-named respondent who appears to be in very poor health. Moreover her husband had died

very recently. Nevertheless, her ownership of the farm came to play a crucial part in the reasoning of the High Court.

64. I would prefer to leave to the High Court, on rehearing, to consider all aspects of the appellant’s non-compliance with the order.

Clearly, he cannot be committed to prison for contempt of court if it is impossible for him to comply with the order. In Dublin City

Council v. McFeely [2013] 1 I.L.R.M. 40, this Court held that it had become impossible for the respondent to comply with the terms of

undertakings he had given to the court. Those orders concerned the carrying out of remedial works to a block of apartments so as to

render them safe from fire hazard. However, the respondent had, by order of the court, been removed from the site of the apartment

block. Denham C.J. explained the matter as follows at paragraph 63 of her judgment:

“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.”

65. For that reason, it was no longer possible for the respondent in that case to comply with the order. Thus, that is a special case.

Aranbel Limited v. D’Arcy is also a different type of case. It was not a case of contempt of court. There was no point in making an

order for specific performance of a contract which the purchaser did not have the money to complete. He remained, nonetheless,

liable for damages in lieu of specific performance.

66. In the present case, the respondent does not contest that he is in contempt. He has failed to take any action whatever to

comply with an order of the court made in May 2012. His explanation is that he is financially unable to do so. The burden is on him to

show that.

67. For these reasons, I would set aside the order of the High Court and remit the matter to that court for further consideration of

the motion of the Council for committal and attachment of the appellant.