B.L. v Governor of Castlerea Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 November 2017
• Neutral Citation: [2017] IEHC 737
• Docket Number: [2017 No. 951 SS]
• Date: 21 November 2017

IN THE MATTER OF AN APPLICATION UNDER AND IN ACCORDANCE WITH ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND

BETWEEN

B.L.

APPLICANT

AND

THE GOVERNOR OF CASTLEREA PRISON

RESPONDENT

(No. 2)

[2017] IEHC 737

[2017 No. 951 SS]

THE HIGH COURT

Constitution – Art. 40.4.2 of the Constitution – Family – Failure to pay maintenance – Civil contempt – Indefinite imprisonment

Facts: The applicant filed an application under art. 40.4.2 of the Constitution for challenging his detention in prison. The applicant had been in imprisonment for an indefinite period for his failure to clear the outstanding amount of maintenance. The applicant contended that he had no means to pay for the said amount and that the duration of imprisonment for civil contempt should have been for a definite period.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court held that for the applicants who were contemptuous, a period of indefinite imprisonment would be insufficient. The Court held that the applicant should have raised the issues in relation to his inability to pay the balance of maintenance amount in the Circuit Court. The Court found that the applicant did not file any affidavit or evidence for showing his financial means before the Circuit Court.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of November, 2017

1 The applicant married Ms. C.L. in 2002. Unhappy differences arose and an order for maintenance was made against the applicant on 28th March, 2007. Ms. C.L.'s application for a decree of judicial separation was granted on 8th April, 2008. It is clear that the applicant is engaged in a protracted campaign of frustration of the legal process. His wife's solicitor has stated that ' he intends to go on forever until he breaks either my client or myself' (transcript of the Circuit Court hearing, 25th July, 2017).

2 At one stage it was estimated that 44 Circuit Court orders had been made in the case. The applicant has been imprisoned a number of times by both the Circuit and High Courts.

3 It will be instructive to outline the multiple series of applications made to the High Court to give context to the conclusions I am reaching in the present application.

The first appeal to the High Court

4 The applicant served a notice of appeal to the High Court on the 28th January, 2009 against an order of His Honour Judge Nolan said to have been made on 19th January, 2009. He was represented at that time by Mullaneys Solicitors. The reference to an order of 19th January, 2009 appears to be intended to refer to an order of 10th January, 2009 refusing to facilitate an appeal against an earlier order and requiring the applicant to hand over cards for livestock and directing the sale of a herd. That appeal was not pursued.

The second appeal to the High Court

5 A notice of appeal dated 29th May, 2009 was filed by J.A. Shaw & Co. Solicitors on behalf of the applicant against an order of His Honour Judge Nolan of 18th May, 2009, directing lands to be sold to discharge monies due. That appeal came before McKechnie J. on 3rd November, 2009 who struck out the appeal with costs to Ms. L.

The third appeal to the High Court

6 His Honour Judge Anthony Kennedy made an order on the 23rd October, 2009 giving liberty to J.A. Shaw & Co. to come off record for the applicant, granting an injunction requiring the applicant's removal of cattle from lands, restraining the applicant from interfering with the sale of the lands and committing him for contempt. A notice of appeal dated 30th October, 2009 was filed and signed by Michael Monaghan Solicitors appealing that decision to the High Court. That appeal was dismissed by Harding Clark J. on 14th April, 2011 [2009 No. 48 CAF] who directed the applicant to remove all cattle from the lands within a week and remove all personal property within three weeks. Costs were reserved to the order but I am told that they were subsequently granted to Ms. L.

The fourth appeal to the High Court

7 On 29th July, 2010 a further notice of appeal was filed by Michael Monaghan Solicitors against an order of the July, 2010 of His Honour Judge Kennedy. Judge Kennedy had made two orders on that date holding that the applicant is in continuing contempt of the Circuit Court and recording his request to the High Court that the outstanding High Court Appeals be heard in conjunction with a judicial review brought by the applicant, to which I will refer shortly. The second order granted a well-charging order in favour of Ms. L. in separate proceedings brought by way of Equity Civil Bill [2010 No. E0014]. Harding Clark J. ultimately made an order dismissing the fourth High Court Appeal and restraining the applicant from entering on lands. Again costs were reserved and I am told that ultimately they were granted to Ms. L.

First judicial review

8 The applicant brought a judicial review application ( L. v. Kennedy [2010 No. 781 J.R.]) against an order of His Honour Judge Kennedy but did not proceed with that application.

The second judicial review

9 The applicant then brought a further judicial review again challenging an order of Judge Kennedy requiring the lands to be sold ( L. v. Kennedy [2010 No. 880 J.R.]). That application was struck out by Harding Clark J. in the same order referred to above in the 2009 No. 48 CAF proceedings.

Ms. L's motion for directions

10 Ms. L. brought a motion in the High Court seeking to re-enter proceedings and seeking a direction requiring the Registrar of Titles to register the purchaser of properties the subject matter of the proceedings as owner of the property and for the discharge of a judgment mortgage on the 21st November, 2010. That motion was granted by Harding Clark J. on the 7th December, 2010 and again costs were reserved.

Contempt proceedings in the High Court

11 There is a further order of Harding Clark J. of 15th February, 2013, releasing the applicant from custody on foot of his contempt of a previous order and accepting his apology. There is no reference in that order to costs.

Second contempt proceedings in the High Court

12 There is a further order of Abbott J. of 21st October, 2013 holding the applicant in contempt and admitting him to bail on the contempt issue on certain conditions. The order does not contain an order awarding costs as such other than by way of allowing costs under the legal aid scheme to Emer O'Sullivan Solicitors for the applicant.

The fifth appeal to the High Court

13 Her Honour Judge Flanagan made an order on 21st June, 2013, refusing to vary maintenance. That order was appealed by the applicant to the High Court. The appeal was dismissed by Peart J. on 22nd July, 2014. For clarity I should mention that the order that was drawn up has an incorrect date for the notice of appeal. Costs were awarded to Ms. L.

The attempted sixth appeal to the High Court

14 The applicant brought a motion [2015 No. 6 CAF] returnable for 6th March, 2014 seeking to extend time to appeal an order of the Circuit Court of 18th November, 2014. That order had adjourned a motion for attachment, gave liberty to Ms. L. to relist the matter in the event that certain cheques furnished did not clear, and gave liberty to the applicant's solicitors to come off record. The motion to extend time was struck out by the Master on 6th March, 2015 with costs to Ms. L.

The third judicial review

15 Ms. L. brought a further application in the Circuit Court for the attachment and committal of the applicant arising from his failure to comply with the order of 8th April, 2008 in relation to the payment of maintenance. That culminated in an order made by Her Honour Judge Flanagan on 18th February, 2016 directing that the applicant be attached and brought before the Court to show why he should not be committed to prison for that contempt. In B.L. v. Flanagan [2016] IEHC 412 I granted leave to the applicant to seek prohibition in relation to the contempt process ( [2016 No. 336 J.R.]). The substantive hearing of that judicial review came before White J. who dismissed it ( B.L. v. C.L. [2017] IEHC 328, 22nd May, 2017). White J. held that, essentially, the applicant had engaged in a campaign of obstruction of the family law proceedings and had not revealed that at the leave stage. That order has been appealed to the Court of Appeal [2017 No. 281] and is currently listed for directions on 14th December, 2017.

The current Circuit Court order

16 The contempt matter to which the judicial review related then came on before His Honour Judge Keenan Johnson in the Midland Circuit on 25th, 27th and 28th July, 2017 and the transcript has been made available to me in these proceedings. The applicant was not present on 25th and 27th of July and there was some discussion about how he could be brought before the Court, which ultimately happened in custody on 28th July, 2017. The transcript makes clear that the applicant had failed to pay maintenance and would have to pay a backlog of €41,700 if he wished to purge that contempt.

The first Article 40 application

17 In early August, 2017 the applicant's partner moved an Article 40 application before Moriarty J. He apparently advised her to get legal representation. It is not clear that any papers were actually filed or any record number assigned.

The second Article 40 application

18 The second Article 40 application ( [2017 No. 929 S.S.]) was launched before Barrett J. on 22nd August, 2017, who ordered an inquiry. Binchy J. ultimately rejected that application on 24th August, 2017 ( B.L. v. Governor of Castlerea Prison (No. 1) [2017] IEHC 569). It would seem from paras. 15 and 17 of that judgment that the issue of the applicant's lack of legal representation was not pursued in the Article 40 proceedings. The decision of Binchy J. was not appealed to the Court of Appeal. Mr. Alan Toal B.L. who appeared for the applicant initially...