Patrick Kelly (plaintiff) v The National University of Ireland, also known as University College Dublin

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date26 February 2010
Neutral Citation[2010] IEHC 48
Date26 February 2010
CourtHigh Court
Docket Number[2007 No. 52 CA]

[2010] IEHC 48

THE HIGH COURT

[No. 52 CA/2007]
Kelly v National University of Ireland (aka University College, Dublin)

BETWEEN

PATRICK KELLY
PLAINTIFF

AND

THE NATIONAL UNIVERSITY OF IRELAND, ALSO KNOWN AS UNIVERSITY COLLEGE, DUBLIN
DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL
NOTICE PARTY

BELVILLE HOLDINGS LTD v REVENUE COMMISSIONERS 1994 ILRM 29

MCG v W(D) (NO.2) 2000 1 ILRM 121

AINSWORTH v WILDING 1896 1 CH 673

SWIRE, IN RE 1885 30 CH 239

STANCOMB v TROWBRIDGE UDC 1910 2 CH 190

COMPETITION AUTHORITY v LICENCSED VINTNERS ASSOCIATION & ORS UNREP MCKECHNIE 24.7.2009 2009 IEHC 439

COURTS: Jurisdiction

Slip rule - High Court - Inherent jurisdiction - Orders - Amendment -Application to amend order made and perfected - Test to be applied - Whether order made accurately reflecting judgment and intention of court - Contempt - Breach of order - Standard - Whether plaintiff in breach of order as made and perfected - Test to be applied - Whether breach of order intentional - Whether standard of proof beyond reasonable doubt - Belville Holdings Ltd v Revenue Commissioners [1994] ILRM 29, GMcG v DW (No 2) [2000] 4 IR 1, In re Swire (1885) 30 Ch D 239, Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] 1 AC 15, Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 and Competition Authority v Licensed Vintners Association [2009] IEHC 439, (Unrep, McKechnie J, 24/7/2009) approved - European Convention on Human Rights 1950, article 6 - Amendment refused (2007/52MCA - 26/2/2010) [2010] IEHC 48

Kelly v National University of Ireland, Dublin

Facts On the application of the defendant the plaintiff had an order made against him requiring the removal of material from the Internet. The defendant had returned to court seeking a further order on the basis that on the plaintiff's website it was stated that the material had been removed but was available on other websites. As a result a further court order was made that required, inter alia, that the plaintiff 'remove or have removed from any website any link reference or assertion of availability relating to or touching upon any documentation' covered by the previous order. The plaintiff brought the current application on the basis that this order should be amended as he would be unable to remove anything from websites that he did not control.

Held by McKechnie J in refusing the application. The plaintiff had sought to rely on the fact that he did not control a website so as to insulate himself from consequences which would otherwise flow if he did. It was clear to the Court that the plaintiff was informing people that although material had been removed, it was available from other sites. If the plaintiff were to pass material to others who then published it on a site, the plaintiff would not be protected merely by virtue of the fact that he did not control the site. If material for whatever reason came to be published on another site it would be prudent for the plaintiff to inform the persons controlling the site of the terms of the court order.

Reporter: R.F.

1

JUDGMENT of Mr. Justice William M. McKechniedelivered on the 26th day of February, 2010:

2

1. The within decision is given in response to a motion brought by the plaintiff herein, namely Mr. Patrick Kelly, on 22 nd February 2010 seeking:

"An order amending the order perfected on 8 th December 2009 'so as to carry out the intention and express the meaning of the Court at the time when the order was made...'."

3

In the supporting affidavit Mr. Kelly contends that the Order made and perfected on 8 th December 2009, does not properly reflect this Court's ruling or its intention of thatdate. In support of what he asserts was the Court's intention on that date he exhibits the transcript of the appearance before the Court where the Order was discussed, on 8 th December 2009.

4

2. For the purposes of clarity the Order, dated the 8 th December 2009, should be set out. The Order states, inter alia:

"The Court doth Order in mandatory form that the Plaintiff do forthwith remove or have removed from any website any link reference or assertion of availability relating to or touching upon any documentation or communication covered or affected by the Order of this Honourable Court dated 26 th November 2009 in the within proceedings whether such website be controlled by the Plaintiff or otherwise and in particular inter alia the links and assertions of availability of such documents contained on:"

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i) www.scribd.com

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ii) www.docstoc.com

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iii) www.trinitycollegevisitors.0catch.com

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Including any sub-domains therein.

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AND IT IS FURTHER ORDERED that the said Plaintiff his servants and agents and all persons having notice of the making of this Order forthwith be restrained and prohibited from further publishing any link reference or assertion of availability relating to or touching upon any document or communication covered or affected by the aforesaid Order on any website whether controlled by the Plaintiff or otherwise or in any form whatsoever."

10

The Order of 26 th November 2009 (perfected on 27 th November 2009), referred to in the above-recited Order related to the removal from the internet by Mr. Kelly ofcertain specified and other allegations contained in an affidavit of 11 th November 2009 and legal submissions of 12 th November 2009 which had as their object or effect the scandalising or undermining of the reputation or authority of the Court.

11

3. Following the making of the Order of the 26 th November 2009, the defendant returned to Court on 8 th December 2009 to bring to the Court's attention matters which it felt were in contravention of that Order. In particular the defendant noted that on Mr. Kelly's website it was explicitly stated that the materials directed to be removed were still available on other websites on the internet. Mr. Kelly, on his site informed all who accessed it that:

"The above documents are available from other sites on the internet. Patrick Kelly is not responsible for the publication or circulation after the 26 th November, 2009, of those documents on the internet."

12

Mr. Kelly's response was that it was inevitable that in the time between first putting the documents on the internet and the Order for the removal of their content they may have been distributed by others unknown to him, and over whom he had no control; hence the hearing and resulting Order of 8 th December 2009.

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4. Mr. Kelly complains that this Order does not represent the ruling of the Court, as evidenced by the transcript of the 8 th December 2009, there otherwise being no written record of it, apart from the Order. He takes particular issue with the phrase "whether controlled by the Plaintiff or not". He claims that he would be unable to remove anything from websites which he does not control.

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5. I concur with the authorities Mr. Kelly has placed before me in relation to the Court's jurisdiction to alter or amend its own Orders, and agree fully with their contents. It is clear that the Court has jurisdiction to alter or amend an Order once it has been perfected:

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i) Where there has been an...

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