James O'Gorman v The Governor of Cork Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart,Mr. Justice Herbert
• Judgment Date: 15 May 2007
• Neutral Citation: [2007] IEHC 172,[2006] IEHC 236
• Court: High Court
• Docket Number: [2006 No. 850 SS]
• Date: 15 May 2007

O'G (J) v Governor of Cork Prison

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE

CONSTITUTION OF IRELAND

Between:

James O'Gorman

Applicant

And

The Governor of Cork Prison

Respondent

[2006] IEHC 236

Record Number: No. 850 SS/2006

THE HIGH COURT

CONSTITUTION

Personal rights

Liberty - Habeas corpus - Detention - Attachment and committal - Penal indorsement - Warrant not reflecting intention or order of court - Absence of penal indorsement on copy court order - Constitution of Ireland, Article 40.4 - Consolidated Circuit Court Rules 2001 (SI 510/2001), O 36, r 25 - Release of applicant ordered (2006/850SS - Peart J - 19/07/2006) [2006] IEHC 236 O'G(J) v Governor of Cork Prison

: A warrant for arrest and committal of the applicant was issued authorising the custody of the applicant and his delivery to prison and to safely keep him for a period of 4 weeks until such time as he had purged his contempt for a failure to obey an undertaking of the Court. It was contended for the applicant that no evidence existed in the Order of the judge that the applicant was to purge his contempt and that no evidence of an undertaking was given nor any breach thereof.

Held by Peart J. in finding the detention of the applicant to be unlawful, that the warrant for arrest and committal was entirely unsatisfactory and was inadequate to authorise the deprivation of liberty.

Reporter: E.F.

CCR O.36 r25

DUFFIELD v ELWES 1840 CH 268

CCR 1950 O.33 r25

PRIOR v JOHNSTON 27 ILTR 108

CENTURY INSURANCE CO LTD v LARKIN 1910 CH 91

SUPREME COURT PRACTICE 1991 VOL 1

PRACTICE RULES (UK) O.47 r7(4)

MOERMAN-LENGLET v HENSHAW (23.11.1992 TIMES LAW REPORTS CHADWICK)

O (A MINOR), RE UNREP BINGHAM CA CIV 5.5.1994 (UK) (UNREP)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S21(9)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S21(12)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S15

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S21(11)

1 Mr Justice Michael Peart delivered on the 19th day of July 2006 :

2 The applicant has, through his own actions, got himself into what the late Lord Denning, Master of the Rolls, might easily have described as "a bit if a pickle". In one sense he has only himself to blame. However, it can also be said with justification that by virtue of a concatenation of misfortunate circumstances, contributed to at least in part by a somewhat sloppy adherence to detail and the rules of court by the party which moved for the applicant's attachment and committal, and the manner in which court orders have been made and drawn up, the applicant's actions have resulted in his unlawful detention.

3 It is necessary to set out in some detail the history of events which have occurred in order to fully understand why I have reached the conclusion that the detention of the applicant is unlawful. But before doing so I should record that following the applicant being produced to the Court on the 27th June 2006, I released him on bail pending the hearing of submissions and the delivery of my judgment in relation to the legality or otherwise of his detention..

4 Following the commencement of family law proceedings in Cork Circuit Court in 2002 by the applicant's wife, a judicial separation order was granted on the 23rd June 2004. On the 14th March 2005 following re-entry of the proceedings, an order was made by His Honour Judge Sean O'Donnabhain for the sale of what is described in the order as "the sale of the property at Ballymaclaurence, Ballyhooley, Co. Cork". This property comprised the family home and some land. That order goes on to state: "Respondent to vacate - stay until contracts are signed".

5 The next relevant event appears to be that the matter came before the Circuit Court again on the 12th January 2006, this time before His Honour Judge Harvey Kenny, on an application by the wife wherein she complained that the applicant had failed to vacate the property. It is not clear to me whether the stay referred to in relation to the applicant vacating the property had in the meantime been lifted, but one way or the other an order was made on the 12th January 2006 by His Honour Judge Kenny which ordered, inter alia, the following:

"2. That the respondent vacate the property by 1/2/2006".

6 I note in passing that "the property" is not specified, although by obvious inference it could only be the property described in the previous order dated 14th March 2005.

7 The order also ordered:

"6. That the cattle on the land are to be removed."

8 I note in passing also that the order is silent as to who is to remove the cattle from "the land", or as to what land is being referred to. Again, by inference only, it must be the land which is attached to "the property" referred to in the earlier order.

9 By letter dated the 26th January 2006 the wife's solicitors wrote to the applicant herein and enclosed a copy of the order dated 12th January 2006. That letter simply stated:

"We enclose herewith copy order dated the 12th January 2006 for your attention."

10 There was no "penal endorsement" attached to or written upon the copy order sent to the applicant with this letter, as required by the Rules of the Circuit Court 2001 (O.25???).

11 I infer that at this point in time the applicant herein was not legally represented since the letter was sent directly to the applicant rather than to any solicitor on his behalf. Neither does it appear from the order dated 14th March 2005 already referred to, that the applicant herein (the respondent to that motion) was legally represented.

12 The next relevant event is that the wife's solicitors issued a Notice of Motion dated 30th March 2006, returnable before the Cork Circuit Court on the 25th April 2006 in which a number of reliefs were sought, including an order compelling the applicant herein to comply with the said order dated 12th January 2006 to vacate the property, and if necessary an order attaching the applicant herein and directing him to appear before the Court to show cause why he should not be committed for a breach of that order. The notice of motion and grounding affidavit were personally served upon the applicant herein on the 11th April 2006.

13 That motion was grounded upon an affidavit of the wife's solicitor which I will not set forth in detail, but it recites her instructions that as of that time the applicant herein had not vacated "the property". It appears that on the return date the motion was adjourned until the 9th May 2006 on which date an order was made for the attachment of the applicant herein and directing him to appear the Court on the 11th May 2006. On that date it appears that the applicant, appearing in person, gave an undertaking to the Court (His Honour Judge James O'Donohoe) that he would vacate the property by 9pm on the same date, the 11th May 2006, and the matter was adjourned to Judge Harvey Kenny's list for the week commencing the 16th May 2006. The order made on the 11th May 2006 directed that the wife was to be allowed to enter the property after 9pm on the 11th May 2006 and to change the locks. An affidavit sworn by the wife on the 15th June 2006 tells us what happened following that undertaking dated 11th May 2006. She arrived at the property at 9.30pm and left again at about 11.30pm, and that the applicant herein had not vacated the property by that time. However it appears that on the 15th May 2006 the applicant herein telephoned his wife to say that he wanted to give her the keys to the property, and she states that later that night at about 8pm after she had obtained the keys, she arranged for a locksmith to change the locks and that the house was secured, but that the locksmith was unable to change the lock on a Pvc door at the rear of the house. She states that she returned the house on the following morning the 16th May 2006 in the company of her sister and the locksmith, and on that occasion the locksmith was able to secure the windows and the rear door by drilling brackets into the Pvc. She states also that on that occasion she checked and confirmed that all windows were closed and all blinds were up.

14 On the 17th May 2006, His Honour Judge Kenny adjourned the matter generally with liberty to re-enter on short notice in the event that there was any further interference by the applicant herein with the sale of the property.

15 The wife's affidavit then records that on the 25th May 2006 she went back to the house with two auctioneers, and that as soon as she arrived at the premises she knew that the house was still occupied since the blinds in the bedroom were pulled down and were not as she had left them on the 16th May 2006. When she went to the rear of the house she saw the applicant herein emerging from a window. She told him that to leave the property and to open the front door since she had people to see the house. She said she would return and requested him in the meantime to remove himself and his belongings from the house. When she returned in due course she found that the brackets which had been placed on the Pvc door and windows were broken and she could not secure the house.

16 The applicant herein was again seen to be in the house by a locksmith on the 3rd June 2006, and he was reluctant to enter the house in those circumstances. The wife arrived in due course and observed the applicant herein in the yard, and she saw also that his belongings which she had removed from the house and placed in a plastic bag in a shed, had been returned to the house. She also saw that the back door had been opened, but that a door between the utility room and the kitchen had been locked, and this prevented her from gaining access to the house.

17 On the application of the wife on the 14th June 2006, and in the absence of the applicant herein, His Honour...