Muller v Shell E & P Ireland Ltd

• Jurisdiction: Ireland
• Judge: Kearns P
• Judgment Date: 19 June 2010
• Neutral Citation: [2010] IEHC 238
• Docket Number: 2068 SS/[2009]
• Court: High Court
• Date: 19 June 2010

Muller v Shell E & P Ireland Ltd

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

MONICA MULLER

APPLICANT

AND

SHELL E&P IRELAND LIMITED

RESPONDENT

[2010] IEHC 238

2068 SS/[2009]

THE HIGH COURT

PRACTICE AND PROCEDURE

Civil contempt

Standard of proof - Beyond reasonable doubt - Whether court order prohibiting entry onto land - Acquisition of ownership of land - Entry onto land contrary to court order -District Court order prohibiting entry operated after respondent acquired co-ownership of lands - Whether entry amounted to contempt - Whether order rendered moot by acquisition of ownership rights - Whether order absolutely prohibited any entry whatsoever - Whether duty to uphold solemnity of court order - Competition Authority v Licensed Vintners Association [2010] 1ILRM 374 followed - National Irish Bank v Graham [1994] 1 IR 215; Re Bramblevale Limited [1970] Ch 128; Chelsea Man plc v Chelsea Girl Ltd [1988] FSR 217 and Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67 considered - Summary Jurisdiction Act 1857 (???) - Courts (Supplemental Provisions) Act 1961 (No 39), s 51(1) - Gas Act 1976 (No 30), 26 - Gas (Amendment) Act 2000 (No 26), s 20 - Constitution of Ireland 1937, arts 40.3 and 43 - Questions answered in negative (2009/2068SS - Kearns P - 18/6/2010) [2010] IEHC 238

Muller v Shell E&P Ireland Ltd

Facts: The proceedings arose as an appeal by way of case stated from the decision of the District Court where it was found that the entry of the respondent on certain lands was contrary to a Court Order made in 2007 and constituted contempt of court. The District Court made an Order for prohibition pursuant to Gas Act 1976, prohibiting the respondent from entering onto the lands to carry out site investigations until the legislation was complied with. The respondent purchased a share in the commonage lands in 2008 and entered the lands and carried out observations and surveys In 2009 the applicant brought an application seeking the attachment and committee of the respondent. The District Judge sought the opinion of the High Court in respect of whether an Order to prohibit entry after the acquisition of co-ownership of the lands the subject of the order and whether there was an absolute prohibition on entry onto the lands.

Held by Kearns P. that it followed from an application of the standard of proof beyond a reasonable doubt to an allegation of civil contempt that if reasonable doubt arose as to the scope or interpretation of an Order, that this had to be resolved in favour of the person alleged to have breached the order. It was clear that the District Judge did not intend to prohibit entry onto the lands in all circumstances. The District Judge did not make any finding beyond reasonable doubt that the Order was breached. The matter had not been determined to the requisite standard of proof to justify a finding that the respondent was guilty of civil contempt. The first question would be answered in the negative.

Reporter: E.F.

SUMMARY JURISDICTION ACT 1857 S2 (UK)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

GAS ACT 1976 S26(4)

GAS (AMDT) ACT 2000 S20

CONSTITUTION ART 40.3

CONSTITUTION ART 43

GAS ACT S26(1)

COMPETITION AUTHORITY v LICENSED VINTNERS ASSOCIATION 2010 I ILRM 374

NATIONAL IRISH BANK v GRAHAM 1994 1 IR 215

BRAMBLEVALE LTD 1970 CH 128

CHELSEA MAN PLC v CHELSEA GIRL LTD 1988 FSR 217

ARLIDGE EADY & SMITH ON CONTEMPT 3RD 12-53

REDWING LTD v REDWING FOREST PRODUCTS LTD 1947 64 RPC 67

Kearns P

1 This is an appeal by way of case stated from the decision of the District Court made on the 4th September, 2009 in which that Court found that the respondent's entry onto certain lands at Rossport and Muingnabo Commonages was contrary to a Court Order made on the 14^th November, 2007 and constituted contempt of court. At the sitting in November, 2007 the Court made an Order for prohibition pursuant to s. 26(4) of the Gas Act, 1976 prohibiting the respondent from entering onto the commonage lands either to carry out site investigations or otherwise until such time as the provisions of the Gas Act, 1976 had been complied with. The respondent has sought to appeal the finding of the Court in respect of its decision of the 4^th September, 2009 by way of case stated in an application for an appeal by way of case stated dated 15^th September, 2009.

2 It is common case that the respondent purchased a 1/62^nd share in the commonage lands on 26^th May, 2008 and thereafter it entered onto the commonage lands and carried out observations and surveys on those lands.

3 On 6^th March 2009, the applicant brought an application seeking the attachment and committal of the respondent and a number of its consultants and contractors for breaching the Order of the District Court. On 4^th September, 2009, District Judge Devins made the following findings:-

4 a "(a) As I found the act of ingress on the lands constituted contempt I did not consider it necessary to consider whether or not acquisition of the commonage rights allowed the respondent to carry out works on the lands. I further held that the actions of ingress on the commonage lands have been proved beyond reasonable doubt and were in contempt of my Order of the 14^th day of November, 2007;

5 (b) My Order of the 14^th day of November, 2007 was specific in its terms. It prohibited entry by the respondent until the provisions of the Gas Act, 1976 (as amended) had been complied with. It did not provide for any other means of complying with the Order. The respondent ignored the Order and was guilty of civil contempt. If the respondent considered that acquisition of the commonage rights rendered the Order moot then an application to vacate the Order should have been made.

6 b (C) The purchase of the share in the commonage lands by the respondent rendered my Order of the 14^th day of November, 2007 moot. I indicated that the respondent should make an application to vacate the District Court Order as soon as practicable and that I would consider any such application favourably."

7 The learned judge has now sought the opinion of the High Court in relation to the following questions:-

8 a "(a) Can an Order of the District Court made pursuant to s. 26(4) of the Gas Act, 1976 (as amended) which prohibited entry onto certain lands for the purpose of carrying out investigations or otherwise until such time as the provisions of such section have been complied with operate to prohibit the person against whom the said Order was made when entering onto lands, the subject matter of the Order after that person has acquired co-ownership of those lands

9 (b) Was it open to the Court to hold that the Order made on the 14^th day of November, 2007 absolutely prohibited any entry whatsoever on to the commonage lands by the respondent and thus hold that any such entry amounted to contempt?

10 Section 26 of the Gas Act,1976 provides as follows:-

11 2 "(1) Any officer of the Board or any other person appointed in writing by the Board to be an authorised officer for the purposes of this section (which person is subsequently in this section referred to as an "authorised person") may at any reasonable time enter on any land for any one or more of the following purposes, namely;

12 (a) for inspecting and surveying the land and making thereon any inquiry, investigation or examination for the purpose of ascertaining whether or not the land, or a right over the land, is suitable for acquisition by the Board for a purpose of this Act,

13 (b) for carrying out thereon any investigation or examination preliminary or incidental to the acquisition by the Board of the land or any right over the land.

14 (2) An authorised person entering on land under this section may do thereon all things ancillary to or reasonably necessary for the purpose for which the entry is made, and without prejudice to the foregoing he may in particular do, or cause to be done, any of the following, namely, line sight, drill, bore, probe or excavate, or carry out soil tests and, if necessary, remove soil.

15 (3) Before an authorised person enters under subsection (1) of this section on any land, he shall either obtain the consent, in the case of occupied land, of the occupier, or, in the case of unoccupied land, of the owner, or shall give to the owner or occupier, as the case may be, not less than fourteen days' notice in writing of his intention to make the entry.

16 (4) A person to whom a notice of intention to enter on land has been given under this section by an authorised person may, not later than fourteen days after the giving of such notice, apply, on notice to such authorised person, to the Justice of the District Court having jurisdiction in the district court district in which the land is situate for an order prohibiting the entry, and, upon the hearing of the application, the Justice may, if he so thinks proper, either wholly prohibit the entry or specify conditions to be observed by the authorised person making the entry.

17 (5) Where a Justice of the District Court prohibits under this section a proposed entry on land, it shall not be lawful for any person to enter under subsection (1) of this section on the land, and where a Justice of the District Court specifies under this section conditions to be observed by persons entering on land, every person who enters land under the said subsection (1) shall observe the conditions so specified."

18 By virtue of s. 20 of the Gas (Amendment) Act,2000 the application of s. 26 of the Act of 1976 was extended to "relevant persons" as defined in the Act of 2000 and the respondents thereby come within the provisions of s. 26 of the Gas Act, 1976 in the same manner as any...