The High Court has refused Patrick Kelly’s application to amend an order requiring him to remove online references to documents covered by an earlier court order. The order made on 8 December 2009 remains in force as written.
Mr Kelly applied on 22 February 2010, arguing that the perfected order did not reflect the court’s ruling or intention. He objected in particular to wording requiring removal of links or references on websites “whether controlled by the Plaintiff or not”. He said he could not remove material from websites he did not control.
The court said the wording addressed Mr Kelly’s position that he could not be responsible for material on websites outside his control, even where he had supplied the material or directed people to it. The December order required him to remove, or have removed, links and claims of availability concerning material covered by an order of 26 November 2009. That earlier order concerned specified and other allegations in an affidavit and legal submissions which, the judgment said, had the object or effect of scandalising or undermining the court’s reputation or authority.
The judge accepted that a court can amend a perfected order for an accidental slip or, in exceptional circumstances, when it does not accurately record what the court decided and intended. But he found that the 8 December order accurately reflected the court’s intention and was not too broad.
The judgment also explained limits on potential contempt liability. A breach must be proved beyond reasonable doubt, and disobedience that is casual, accidental or unintentional would generally not make a person liable. The judge said Kelly would not be liable merely because material appeared on a website with which he had no connection and of which he had no knowledge. If such a site came to his attention, the judge said it would be prudent to notify those publishing the material of the order and request its removal.
The court rejected Kelly’s arguments that the order breached the Constitution or the European Convention on Human Rights. It refused the application to amend the order, which therefore stands as made.