The Supreme Court has allowed an appeal and set aside High Court orders committing property developer Thomas McFeely to three months in prison and imposing a €1 million fine in contempt proceedings brought by Dublin City Council.
In a judgment delivered on 31 July 2012, Mr Justice Hardiman agreed with judgments delivered by Chief Justice Denham and Justice Fennelly. He said the validity of the penal orders depended on proof that McFeely had breached a specific court order made in October 2011. Referring to the Chief Justice’s reasons, Hardiman said McFeely had not in fact breached that order.
Hardiman also criticised uncertainty about the basis for the committal. The High Court order recited the Council’s motion seeking attachment and committal as the basis for the imprisonment and fine. But, during the appeal, the Council argued that its motion was “wholly irrelevant” and that the trial judge had acted on his own initiative. Hardiman said he could not trace where the Council had applied for leave to seek attachment and committal, despite the judge having given it liberty to do so.
He said contempt procedures must be used with “manifest caution and great reluctance” because they can deprive people of liberty or property without the protections of a criminal trial. The alleged breached order must be identified clearly in the committal motion, he said, and evidence of a breach must be presented in proper form after timely service. He said it did not appear that all these steps had occurred in this case.
The judgment also records that the Supreme Court stayed the imprisonment order pending the appeal. Hardiman said the Council, which had issued the committal motion and been represented at the High Court hearing, did not appear when McFeely’s counsel later sought a stay in the Supreme Court, despite notice of that intention.
Hardiman noted that the appeal did not resolve the wider Priory Hall residents’ problems. He said the residents’ homes remained uninhabitable, that no progress had been made since November 2011, and that the Council had conceded the appeal’s outcome would have no effect on their plight. He said the Supreme Court did not need to decide the separate issue raised about the scope of section 23 of the Fire Services Act 1981.