High Court refuses amendment to order as it accurately reflects the court's original intention and ruling.

Neutral Citation Number: [2010] IEHC 48

THE HIGH COURT

2007 52 CA

BETWEEN

PATRICK KELLY

PLAINTIFF

AND

THE NATIONAL UNIVERSITY OF IRELAND, ALSO KNOWN AS UNIVERSITY COLLEGE, DUBLIN

DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 26th day of February, 2010:

1. The within decision is given in response to a motion brought by the plaintiff herein, namely Mr. Patrick Kelly, on 22nd

February 2010 seeking:

“An order amending the order perfected on 8th December 2009 ‘so as to carry out the intention and express the

meaning of the Court at the time when the order was made…’.”

In the supporting affidavit Mr. Kelly contends that the Order made and perfected on 8th December 2009, does not

properly reflect this Court’s ruling or its intention of that date. In support of what he asserts was the Court’s intention on

that date he exhibits the transcript of the appearance before the Court where the Order was discussed, on 8th December

2009.

2. For the purposes of clarity the Order, dated the 8th December 2009, should be set out. The Order states, inter alia:

“The Court doth Order in mandatory form that the Plaintiff do forthwith remove or have removed from any

website any link reference or assertion of availability relating to or touching upon any documentation or

communication covered or affected by the Order of this Honourable Court dated 26th November 2009 in the within

proceedings whether such website be controlled by the Plaintiff or otherwise and in particular inter alia the links

and assertions of availability of such documents contained on:

i) www.scribd.com

ii) www.docstoc.com

iii) www.trinitycollegevisitors.0catch.com

Including any sub-domains therein.

AND IT IS FURTHER ORDERED that the said Plaintiff his servants and agents and all persons having notice of the

making of this Order forthwith be restrained and prohibited from further publishing any link reference or assertion

of availability relating to or touching upon any document or communication covered or affected by the aforesaid

Order on any website whether controlled by the Plaintiff or otherwise or in any form whatsoever.”

The Order of 26th November 2009 (perfected on 27th November 2009), referred to in the above-recited Order related to

the removal from the internet by Mr. Kelly of certain specified and other allegations contained in an affidavit of 11th

November 2009 and legal submissions of 12th November 2009 which had as their object or effect the scandalising or

undermining of the reputation or authority of the Court.

3. Following the making of the Order of the 26th November 2009, the defendant returned to Court on 8th December 2009

to bring to the Court’s attention matters which it felt were in contravention of that Order. In particular the defendant

noted that on Mr. Kelly’s website it was explicitly stated that the materials directed to be removed were still available on

other websites on the internet. Mr. Kelly, on his site informed all who accessed it that:

“The above documents are available from other sites on the internet. Patrick Kelly is not responsible for the

publication or circulation after the 26th November, 2009, of those documents on the internet.”

Mr. Kelly’s response was that it was inevitable that in the time between first putting the documents on the internet and

the Order for the removal of their content they may have been distributed by others unknown to him, and over whom he

had no control; hence the hearing and resulting Order of 8th December 2009.

4. Mr. Kelly complains that this Order does not represent the ruling of the Court, as evidenced by the transcript of the 8th

December 2009, there otherwise being no written record of it, apart from the Order. He takes particular issue with the

phrase “whether controlled by the Plaintiff or not”. He claims that he would be unable to remove anything from websites

which he does not control.

5. I concur with the authorities Mr. Kelly has placed before me in relation to the Court’s jurisdiction to alter or amend its

own Orders, and agree fully with their contents. It is clear that the Court has jurisdiction to alter or amend an Order once

it has been perfected:

i) Where there has been an accidental slip in the order as drawn up (the slip rule);

ii) When the Court itself finds that the order does not correctly state what the Court actually decided and intended.

See the judgment of Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissioners [1994] ILRM 29, quoted with approval

by McGuiness J. in G McG v. D W (No. 2) [2000] 1 ILRM 121. Finlay C.J. quoted from the decision of Romer J. in Ainsworth

v. Wilding [1896] 1 Ch. 673, who firstly commented on the decision of the Court of Appeal in In re Swire (1885) 30 Ch. D

239 (CA):

“Cotton LJ says ‘it is only in special circumstances that the Court will interfere with an Order which has been

passed and entered except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has

jurisdiction over its own records, and if it finds that the Order as passed and entered contains an adjudication

upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will

in a proper case exercise, to correct its record, that it may be in accordance with the Order really pronounced.

Lindey LJ says ‘if it is once made out that the Order, whether passed and entered or not, does not express the

Order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or

not.’

And Bohan LJ says ‘an Order as it seems to me, even when passed and entered, may be amended by the Court so

as to carry out the intention and express meaning of the Court at the time when the Order was made, provided

the amendment can be made without injustice or in terms which preclude injustice.’

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning

this question.”

I would fully agree with the above statement of the Court’s jurisdiction. The Court may alter or amend an Order where it

is required under the slip rule or, in exceptional circumstances, where it does not accurately represent the judgment and

intention of the Court.

6. Before continuing I would firstly state that there is a rationale behind the inclusion of the impugned phrase in the Order

of the 8th December 2009. The Plaintiff herein has in the past sought to rely on the fact that he does not control a

website, so as to insulate himself from consequences which would otherwise flow if he did. Despite the undoubted fact

that the relevant materials contained on such sites were provided by him, nevertheless he claims that once he has

distributed such information, he is at all times thereafter immune from judicial scrutiny because he cannot remove the

material since he does not “control” the websites. For that reason it was necessary to include those words within the

Order so that the Plaintiff could not rely on the fact that he did not “control” the website to circumvent any Order this

Court might make in relation to non-publication. It was also clear to the Court that Mr. Kelly was informing people through

the affected websites that although material had been removed it was “available from other sites on the internet”. Such

redirection, even to sites not controlled by the plaintiff, was therefore well within the Court’s comprehension.

7. Nonetheless it is clear that one of the Plaintiff’s concerns relates to a situation where a website of which he has no

knowledge publishes materials covered by the Order. I must say that in this regard his concerns are not merited. When

looking at the law of contempt for breach of an order, it is clear that, in general, where it is alleged that a party has

breached an order, they will only be held liable for that breach where:

“the disobedience is more than casual or accidental and unintentional.” (Heatons Transport (St. Helens) Limited v.

Transport and General Workers Union [1973] 1 AC 15, Roskill L.J.)

Thus although a party may unintentionally breach an Order where they carry out an act which is within the four walls of

an Order, where that breach is “casual, accidental or unintentional”, it will not be found to be a breach of the Order. This

is consistent with the Court’s interpretation of the word “wilful” in Stancomb v. Trowbridge UDC [1910] 2 Ch. 190.

8. Furthermore, if a breach of a Court order is alleged, the breach must be proved beyond reasonable doubt. As stated by

the Court in Competition Authority v. Licensed Vintners Association & Ors. [2009] IEHC 439:

“The overwhelming preponderance of case law is to this effect: Re Bramblevale Ltd. is a clear-cut example

espousing the higher standard: National Irish Bank Ltd. is a clear-cut example of the application of this standard in

practice; Keane J, as he then was, despite very strong circumstantial evidence of a breach, refused to attach as

the required matters had not been established beyond a reasonable doubt. The only contrary view of note is

Millett J’s decision in Chelsea Man Plc., where the standard of “degree and impression” is suggested. If that view

cannot be explained by reference to its own facts, and if the citation of Bramblevale and Dean to the court would

have made no difference, then respectfully I would have to prefer the alternative view. I believe that the criticism

offered of that decision by Arlidge, Eady & Smith is sound and accords with established practice. Moreover, I have

to say that even if this area had not been touched by authority, I would have come to the same conclusion on

first principles.”

9. In those circumstances it may be implied that if a website existed of which the Plaintiff had no knowledge, be it actual,

constructive or implied, which breached the terms of the Order, he could not be held in contempt because of its mere

existence. In this respect I am therefore entirely confident that the Order does not breach Article 34 of the Convention

for the Protection of Human Rights and Fundamental Freedoms, as alleged by the Plaintiff or at all.

10. As with all statutory interpretation, an Order of the Court should be interpreted, so far as is possible, in a way which

does not breach the Constitution. Obviously if the Order cannot be applied in a constitutional manner it could not possibly

stand. However, I am quite satisfied as to the constitutional propriety of the Order in question. The main aim of the Order

is to prevent Mr. Kelly from publishing the materials referred to, or to have published through others, such materials. In

that respect the phrase “whether controlled by the Plaintiff or not” was deliberately placed in the Order as previously

stated. It may be taken that if the Plaintiff had no knowledge, either actual, constructive or implied, of the impugned

action he would not breach the order; this is implicit in all Orders of the Court, as such would clearly be inequitable and

unjust. However, were he to pass materials on to another, who in turn placed them on a website which the Plaintiff had

no control over, or should he find the material on another’s site and inform people of such on his websites, he should not

be protected merely by virtue of the fact that he does not control it. Should a situation arise, where material covered by

the Order became available, through whatever means, on another’s website and this came to the Plaintiff’s attention, it

would be prudent for him to bring the Order of 8th December 2009 to the attention of such persons publishing the

material, so that they might themselves remove such material. Should they not do so they will breach the terms of the

Order.

11. I would also note that there is a practical distinction to be made between a judgment or ruling and an order. A

judgment or ruling makes findings of facts in a certain legal context and comes to a conclusion thereon. The order is

designed to give practical effect in the implementing process of such conclusions. It would be unusual, although not

unknown, for a judgment to explicitly state the precise way in which the directions and intentions of the Court should be

recorded for this purpose: such is a matter for the order. In this respect the Order of 8th December 2009 was drafted in

accordance with standard practice.

12. In his grounding affidavit, Mr. Kelly mentions, in abbreviated form, certain passages from the transcript of the 8th

December 2009. The following statement from the Court, however, should also be noted:

“I propose to make an order in mandatory form directing and compelling Mr. Kelly forthwith to take all steps to

remove or have removed from any website the information which I will specify contained in page 12, or any like

information indicating links to the above matter. I will also make an order permanently restraining and prohibiting

him from inserting on the websites that I have mentioned that information or any like or similar information, and I

will further consider the matter and revert to the parties.”

The Court, following a question from Mr. Kelly clarified for him that on that occasion the Order was:

“directed towards removing any reference to the availability of the documents which you have referred to on

other sites.”

13. It is therefore clear that the aim of judgment was to have removed from any website the materials covered by the

Order, and any references thereto. The exact terms of the Order were therefore put in place to cover the eventualities

which the judgment foresaw. It is not overarching, and it fundamentally reflects both what the Court said and what it

intended.

14. I am therefore satisfied that the Order made and perfected on 8th December 2009 accurately reflects the Court’s

intention and its ruling, and that it does not breach either the Constitution or any provision of the European Convention

on Human Rights. Again I would add, for the benefit of Mr. Kelly, that should materials appear on websites which he has

absolutely no connection with, and which he has absolutely no knowledge of, he will not be held liable for the

unconnected actions of others. Nonetheless should such sites come to his attention it would be prudent for him to notify

those persons of the existence of the Order and request them to remove such materials.

15. In those circumstances, the Court can see no reason to alter or amend the Order perfected on 8th December 2009 to

reflect, or even better reflect, the Court’s intention and ruling, and Mr. Kelly’s application is hereby refused and the Order

stands as is.