The Supreme Court has allowed Monica Muller’s appeal in a dispute over Shell E&P (Ireland) Limited’s entry onto Rossport Commonage in north County Mayo. The Court held that Shell’s acquisition of a share in the land did not end a District Court order prohibiting the company from carrying out site investigations until it complied with statutory requirements.
The case reached the Supreme Court by way of appeal from a High Court decision on questions of law referred by the District Court. The underlying proceedings began in 2007, after Shell gave notice of its intention to enter the commonage to carry out investigations. Muller owned an undivided one sixty-second share but had not received notice in the manner required by the Gas Act 1976, as amended.
On 14 November 2007, the District Court made an order prohibiting Shell from entering until the Act’s provisions had been complied with. Shell did not appeal that order. It acquired an undivided one sixty-second share in the commonage in May 2008, but did not apply to have the order vacated until after the District Court found it in contempt.
The District Court heard evidence that Shell’s representatives entered the land and carried out surveys, observed flora and fauna, and tested peat depth and type. On 4 September 2009, the District Court found that the acts of ingress had been proved beyond reasonable doubt and amounted to contempt of the order. It also said Shell should apply to vacate the order, which it would consider favourably. The order was vacated on 14 October 2009.
The High Court answered in the negative a question asking whether the order could prohibit Shell from entering after it became a co-owner. It also concluded that the order did not absolutely prohibit every entry, a point later conceded by Muller. The Supreme Court likewise treated the order as not an absolute ban on entry in all circumstances.
But the Supreme Court held that the District Court order governed entry for the statutory purposes that had prompted Shell’s notice, including site investigations. The order remained in force because Shell had not corrected the notice failure or obtained its discharge. The Court said the District Court’s findings of contempt were clear and were not undone by Shell’s later acquisition of a share in the land.
The Supreme Court concluded that the High Court had answered the first question incorrectly; it should have answered “yes”. It allowed Muller’s appeal. The judgment does not itself set out a new contempt sentence or a further order beyond allowing the appeal.