Dublin City Council v McFeely

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IESC 45
• Date: 31 July 2012
• Docket Number: Appeal No. 436/11 & 421/11,[S.C. Nos. 421 & 436 of 2011]
• Court: Supreme Court

Dublin City Council

Applicant

and

Thomas McFeely, Laurence O”Mahony and Coalport Building Company Limited

Respondents/Appellants

[2012] IESC 45

Denham C.J., Murray J., Hardiman J., Fennelly J., McKechnie J.

Between/

Appeal No. 436/11 & 421/11

THE SUPREME COURT

Construction – Property development – Fire safety – Properties developed by appellant considered to be fire hazards – Failure to remedy – Contempt of court

Facts: The first appellant (‘the appellant’) was a property developer who had developed a site in Dublin called Priory Hall. Residents moved into the properties in 2007. Following concerns that the properties were fire hazards, the residents were required to evacuate the properties due to the severe nature of the fire risk. The appellant and associated parties undertook, and were ordered by the High Court, on 17th October 2011 to remedy the defects. However, the High Court held little progress had been made in a hearing on 4th November 2011.

Having found the first appellant was in breach of his undertaking and the order of 17th October and therefore guilty of contempt of court, the High Court made an order on 17th November 2011 for his committal to prison for 3 months and fined him a substantial sum. The first appellant now sought to appeal against his committal.

Held by Denham CJ in the leading judgment, that the Court should be reticent to interfere with the findings of fact made by the Court at first instance. The facts were crucial to determining the instant case, and the Court would first identify the terms of the undertaking and order, before considering whether they had been breached. Hay v. O”Grady [1992] 1 I.R. 210 considered.

The appellant had undertaken to comply with a schedule of works, which was comprised of three phases with dates for completion of each phase. Weekly targets were not agreed, although the High Court required a weekly review of progress. On 4th November 2011 the respondent made an application to the High Court contending there had been a lack of progress, which the appellant disputed. The appellant and his agents were ordered to remove themselves from the properties, and the appellant was held to be in breach of his undertaking and the order. A hearing for the committal of the appellant was held on 17th November 2011.

Having reviewed the facts, the Court considered that meeting weekly targets had not formed part of the appellant”s obligations under the undertaking and order. He could not therefore be held to have breached those targets. The Council”s approach to have the appellant removed from the properties meant it was impossible for him to have complied with his undertaking and the order, and he could not be said to have breached either.

The Court therefore allowed the appeal.

Judgment delivered on the 31st day of July, 2012 by Denham C.J.

1 1. This appeal does not relate to the issue of providing a remedy for the deeply concerning situation which has arisen in relation to Priory Hall, and the position of the residents and owners who have been removed from their homes. This appeal relates solely to the issue of a finding of a contempt of court.

2 2. This is an appeal by Thomas McFeely, the respondent/appellant, referred to as ‘the appellant’, from the order of the High Court (Kearns P.) made on the 4th November, 2011, which held that there had been a breach of the undertaking given on the 17th October, 2011, and the order made on the same date, and in which Dublin City Council, the applicant/respondent, referred to as ‘the Council’, was given liberty to issue a motion of attachment and committal to the appellant.

3 3. On the 17th November, 2011, the High Court found that the appellant was guilty of contempt of court for failing to comply with the undertaking given on the 17th October, 2011. The High Court ordered the appellant”s committal for three months in Mountjoy Prison and a fine of €1,000,000.00, which was to be paid by the 1st March, 2012.

4 4. The second named Respondent, Laurence O”Mahony, is referred to as ‘the second named respondent’. The third named respondent, Coalport Building Company Limited, is referred to as ‘Coalport’.

5 Notice of Appeal

6 5. The notice of appeal in relation to the order of the 4th November, 2011, listed five grounds of appeal. These were:-

• (i) That the High Court failed to afford the appellant fair procedures in allowing the Council to make an application of which the appellant had no prior notice;

• (ii) That the High Court failed to afford the appellant fair procedures in requiring the legal representatives of the appellant to cross examine witnesses called by the Council without any or any adequate opportunity to take instructions in relation to the matters at issue;

• (iii) That the High Court erred in fact and in law in holding that the appellant had failed to comply with his undertaking and/or the Order of the High Court to carry out works in accordance with a schedule agreed between the parties;

• (iv) That the High Court erred in fact in failing to attach any or any adequate significance to the fact that the agreed completion date specified in the said schedule of works was the 28th November; 2011;

• (v) That the High Court erred in fact and in law in granting the Council liberty to bring a motion to attach and commit the appellant on grounds that the appellant had failed to comply with his undertaking and/or the Order of the High Court to carry out works in accordance with a schedule agreed between the parties:

7 6. The notice of appeal in respect of the order of the 17th November, 2011, listed fifteen grounds of appeal. These are:-

• (i) That the High Court erred in finding that the appellant had breached his undertaking to the High Court;

• (ii) That the High Court erred in finding that the appellant had breached the order made on the 17th October, 2011;

• (iii) That the High Court failed to have any or any adequate regard to the fact that the Order of the 17th October, 2011, allowed the appellant until the 28th November, 2011, to complete the first phase of works referred to in the said Order;

• (iv) That the High Court failed to have any or any adequate regard to the fact that the appellant undertook to complete the first phase of works referred to in the said Order by the 28th November, 2011;

• (v) That the High Court erred in finding that the appellant was in breach of his obligations pursuant to the said Order or to his said undertaking before the expiry of the period of time specified therein;

• (vi) That the High Court failed to have any or any adequate regard to the applicable standard of proof;

• (vii) That the High Court failed to have any or any adequate regard to the fact that no coercive purpose could be served by committing the appellant to prison;

• (viii) That the High Court failed to identify how the appellant allegedly breached the said Order or his said undertaking;

• (ix) That the High Court failed to have any or any adequate regard to the fact that the appellant can no longer comply with the Order of the President made on the 17th October, 2011;

• (x) That the High Court failed to have any or any adequate regard to the fact that the appellant has not wilfully disobeyed any Order of the High Court;

• (xi) That the High Court failed to have any or any adequate regard to the fact that a copy of the said Order had not been served on the appellant, whether with a penal indorsement thereon or at all;

• (xii) That the High Court failed to have any or any adequate regard to the fact that the Notice of Motion did not comply with Order 52 rule 4 of the Rules of the Superior Courts;

• (xiii) That the High Court failed to have any or any adequate regard to the efforts made by the appellant to comply with the said Order or with his said undertaking;

• (xiv) That the High Court imposed a penalty that was disproportionate in the circumstances;

• (xv) That the High Court failed to afford the appellant fair procedures.

8 Ground (xi) was abandoned by counsel for the appellant in the course of his oral argument.

9 Issues

10 7. There are two broad issues in this appeal. First, whether the appellant breached an order of the Court or an undertaking. Second, whether there were fair procedures in the hearings.

11 Facts and Law

12 8. In general on an appeal the issue of facts is limited. The Supreme Court is slow to interfere with findings of fact arrived at in the High Court. The limited role of the Court on the issue of facts was described by McCarthy J. in Hay v. O”Grady [1992] 1 I.R. 210 at p. 217:-

13 ‘The role of this court, in my view, may be stated as follows:-

• 1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

• 2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

• 3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in "Gairloch," The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow...