The High Court has refused an application to commit Sean Healy to prison for alleged civil contempt of an order protecting a receiver’s work at properties in Munster.
Mr Justice Tony O’Connor ruled on 2 April 2019 that the evidence did not establish beyond reasonable doubt that Healy was or remained in breach of an order made by Mr Justice Gilligan on 3 April 2017. That order restrained Healy, his servants or agents, and anyone with notice of it from interfering with or attempting to frustrate the receiver’s activities at certain properties, pending trial.
The committal motion was brought by the plaintiff receiver. At this hearing, the application was pursued against Healy alone; the court said other occupiers were not before it. The receiver’s evidence included affidavits from Dick Holmes and Sean Cahill, whose accounts relied in part on information from people who had not sworn affidavits.
Holmes’s affidavit described visits to properties in July 2018. The judge noted that some information in it was incorrect, based on Healy’s uncontradicted affidavit and further account. Healy had been outside the country from 16 to 23 July, supported by flight confirmation correspondence.
Cahill’s affidavit alleged, on information from unidentified sources, that Healy remained a landlord at three properties: 19 Whitepoint Moorings in Cobh, 47 Lockmills in Corbally, and 3 The Lodges at Ballykisteen. In cross-examination, Healy raised reasonable doubts about whether he or an agent collected rent or continued to allow people to occupy those homes. Cahill had not sought written contracts, rent books or receipts from the occupiers, and accepted that his sources could have had ulterior motives.
The judge said Healy had twice told the court he had complied and would continue to comply with the order: through an undertaking on oath in December 2018, given without admitting any past disobedience, and an indication in March 2019 that he had no contractual or other arrangement with the occupiers. In the circumstances, the court refused committal.
The judge also identified a separate issue with the penal endorsement on the order. He said the receiver had not answered the argument that it failed to comply with the rule requiring specific wording, including the words “including imprisonment”. The sanction sought was severe and strict rules applied.
The ruling does not prevent a future similar application based on evidence capable of proving non-compliance beyond reasonable doubt and an order duly served with the required penal endorsement. The judge urged serious efforts to identify occupiers and said local Circuit or District Courts should preferably be used where they can assist in securing possession from trespassers.