The Court of Appeal has dismissed Gerard Martin Fulham’s appeal against the State after he sought damages over his imprisonment in Mountjoy Prison in December 2007 for failure to pay debts. The court held that a 2009 ruling invalidating the law used for the committal orders did not retrospectively undo those earlier, final court decisions.
The judgment, delivered by Mr Justice Robert Haughton on 12 March 2021, followed an earlier decision on 18 January 2021 dismissing the appeal against Chadwicks Limited and Independent Newspapers (Ireland) Limited (INIL), with costs against Mr Fulham. The reserved judgment dealt with the remaining appeal against Ireland and the Attorney General. It dismissed that appeal too.
Chadwicks obtained a Circuit Court judgment for €14,245.63 in 2005 and an instalment order requiring monthly payments of €400. INIL separately obtained a District Court decree for €4,158.97 and an instalment order for €400 a month. After Mr Fulham failed to comply, committal orders were made under section 6 of the Enforcement of Court Orders Act 1940. He was imprisoned from 21 to 28 December 2007. The judgment says he did not appeal or otherwise challenge the District Court orders, and did not claim he had lacked notice of the relevant hearings or orders.
In 2009, the High Court held in McCann v The Judge of Monaghan District Court that section 6 was unconstitutional, citing deficiencies in fair procedures and safeguards. Mr Fulham later sued for damages, arguing that his imprisonment breached his constitutional and natural rights. The Court of Appeal said the McCann ruling did not, by itself, allow him to reopen concluded proceedings based on the law as it stood when the orders were made. Applying the Supreme Court’s decision in A. v The Governor of Arbour Hill Prison, the court found his pleaded claim against the State disclosed no cause of action and was bound to fail.
The court also declined to consider rescuing the claim through an amendment to plead a damages claim under the European Convention on Human Rights Act 2003. Mr Fulham had not sought or proposed an amendment. The court noted that such a claim would be prima facie out of time and that there was no evidence before it that could support an extension. It said a claim under section 3A of the Act could not proceed without a prior finding by a superior court of unlawful deprivation of liberty, which had not been made.
Mr Fulham’s appeal grounds also raised fair-procedure complaints about interruptions during the High Court hearing and requested a reference to the European Court of Human Rights. The Court of Appeal found no evidential basis for the hearing complaints in the absence of the transcript, and said it had no jurisdiction to refer the matter to that court.
The High Court’s costs order was left undisturbed. The Court of Appeal proposed that the State receive its costs of the appeal unless Mr Fulham notified the court within 14 days that he wished to argue for a different costs order; a short hearing would then be scheduled.