The High Court answered “no” to both questions in an appeal by way of case stated over a District Court finding that Shell E&P Ireland Limited had entered commonage lands at Rossport and Muingnabo in breach of a court order. The judgment was delivered by Kearns P on 18 June 2010.
The District Court’s November 2007 order, made under section 26(4) of the Gas Act 1976, prohibited Shell from entering the lands to carry out site investigations or otherwise until the Act’s provisions had been complied with. Shell later acquired a one-sixty-second share in the commonage, in May 2008, and entered the lands to make observations and surveys.
Monica Muller applied in March 2009 to have Shell and several consultants and contractors attached and committed for breaching the order. In September 2009, District Judge Mary Devins found the entry proved beyond reasonable doubt and held that it amounted to civil contempt. She also said the acquisition had rendered the order moot and that she would consider an application to vacate it favourably. The order was vacated in October 2009.
On the case stated, the High Court was asked whether the order could prohibit Shell’s entry after it became a co-owner, and whether the order absolutely barred any entry. Kearns P answered both questions in the negative. The parties agreed the order did not absolutely prohibit every entry. The court held that the statutory order could not prohibit entry after Shell acquired its co-ownership interest.
The judgment also addressed the contempt finding. The evidence and District Court findings did not establish that Shell carried out works prohibited by the order. The court noted the absence of evidence of excavation or similar work, and said any reasonable doubt about the order’s scope had to be resolved in favour of the party accused of contempt. The District Judge had found that entry occurred, but had not clearly found beyond reasonable doubt that the entry breached the order.
The High Court concluded that contempt had not been proved to the required standard. Its answers concerned the questions referred in the case stated; the judgment did not make a finding that prohibited works had been carried out.