Reynolds v McDermott

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Ryan
Judgment Date29 April 2014
Neutral Citation[2014] IEHC 219
Date29 April 2014
Docket Number[2012 No. 898 P.]

[2014] IEHC 219

THE HIGH COURT

[2012 No. 898 P.]

BETWEEN
MARK REYNOLDS AND GLEN CRAN
PLAINTIFFS
AND
EUGENE MCDERMOTT
DEFENDANT

Possession – Lands – Contempt of Court – Court Order – Relief – Receivers – Security – Evidence – Trespassing - Sanctions – Conspiracy

Facts: This case concerned an application by the plaintiffs pursuant to notion of motion dated 10 th September, 2013, seeking the committal of the respondent, Mr Gilroy, for contempt of a court order made on the 5 th March 2012, by his conduct on the 31 st August 2013. The plaintiffs were appointed joint receivers of a property in November, 2011 pursuant to provisions in a mortgage deed executed by the defendant in 2005 to secure borrowings from Anglo Irish Bank. The receivers went into possession of the lands which they secured with fences and they engaged a security firm, LAS Group, to protect the property. There was difficulty with the defendant mortgagor who initially refused to co-operate or to hand over vacant possession of the property. The receivers issued proceedings and on the 5 th March 2012, Justice Murphy, granted the plaintiffs the reliefs sought. The court restrained the defendant and any person having notice of the order from engaging in any of the following conduct: (i) Interfering with the receivers' activities; (ii) Preventing the plaintiffs taking possession; (iii) Remaining in occupation or refusing the plaintiffs access; (iv) Trespassing; and (v) Dealing with the property in any way which would breach the agreement. The order was not obeyed and the motion before the court concerned events which occurred on the lands on Wednesday 28th and Saturday 31st August, 2013, whereby groups of men came onto the land, erected barriers to prevent access and ejected the security personnel, one of whom was assaulted. The plaintiffs claimed that Mr Gilroy was a prime mover in these events. They alleged that he was in contempt of the court order of the 5th March, 2012, by his involvement in organising the invasion of the land on Saturday 31st August, 2013, his presence there and participation in the events which included addressing the crowd. The receivers did not allege that Mr Gilroy was in contempt by his presence on the land on Wednesday 28th; they maintain that the significant thing that happened on that occasion was that Mr Gilroy was served with the court order containing the penal endorsement. Mr Gilroy agreed that he was present on the land on both dates but alleged that he was there by invitation and as an observer only and not as an organiser or active participant. He denied that he was served with the order properly or at all and that he was in contempt of court as alleged or at all.

Held by Justice Ryan that the issues to be determined were: (1) Was Mr Gilroy served with the court order having the appropriate penal endorsement under O. 41, r. 8 RSC on Wednesday 28th August?; (2) If so, was he in contempt by his conduct on Saturday 31st August?; and (3) If so, what sanction, if any, is appropriate? In examining the case before him, Justice Ryan noted that the plaintiffs confined the allegation of contempt to Mr Gilroy”s participation in the events of Saturday 31st August, 2013. Their case was that he was served on Wednesday 28th, but nevertheless acted in flagrant breach of the order on the 31st. On the question of service, Justice Ryan noted that the evidence was overwhelming and that it had been established beyond reasonable doubt that Mr Gilroy was served. With the existence of a photograph and video footage showing Mr Devlin approaching Mr Gilroy and saying "this is for you Mr Gilroy" and "you've been served, coupled with the penal endorsement, Justice Ryan was of the opinion that it would have been perverse to decide that the evidence of service was deficient or that it admitted of any reasonable doubt. With respects to Mr Gilroys assertions that there were irregularities, inaccuracies and lies in the affidavits submitted to the court, and that they should be dismissed without further consideration and the whole application disallowed, Justice Ryan determined that whilst there had been a misunderstanding of the process of production of the affidavits, in respects of the time of place of the affidavits etc, witnesses had been truthful and no conspiracy against him was evident. Thus, as Mr Gilroy had been served with an endorsed court order, his presence on the land on Saturday 31st August, 2013, was in breach of the order by disregarding its injunction against trespassing. Determining that, Mr Gilroy was more than a mere observer, Justice Ryan stated that he was directly engaged in organising the attendance of a large number of protesters with the intention of interfering with the lawful activities of the receivers. Thus, as a prime mover in the events it was reasoned that his behaviour on the 31st August, 2013, amounted to breaches of all the injunctions in the court's order of the 5th March, 2012. In light of that finding, Justice Ryan stated his willingness to allow Mr Gilroy to make a submission as to the sanctions to be imposed, but noted that he considered punishments up to and including a suspended sentence of imprisonment but not actual imprisonment.

Mr Justice Ryan
JUDGMENT of Mr Justice Ryan delivered the 29th April, 2014
1

1. Introduction

1

This is an application by the plaintiffs pursuant to notice of motion dated 10th September, 2013, seeking the committal of the respondent, Mr Gilroy, for contempt of an order of this Court made on the 5th March, 2012, by his conduct on the 31st August, 2013.

2

The plaintiffs were appointed joint receivers of the property comprised in Folio 9703 of the Register of Freeholders, County Kildare in November, 2011 pursuant to provisions in a mortgage deed executed by the defendant in 2005 to secure borrowings from Anglo Irish Bank.

3

The receivers went into possession of the lands which they secured with fences and they engaged a security firm, LAS Group, to protect the property. There was difficulty with the defendant mortgagor who initially refused to co-operate or to hand over vacant possession of the property. The receivers issued proceedings in this Court and Murphy J. on 5th March, 2012, granted the plaintiffs the reliefs sought. The court restrained the defendant and any person having notice of the order from engaging in any of the following conduct:

(i) Interfering with the receivers' activities;

(ii) Preventing the plaintiffs taking possession;

(iii) Remaining in occupation or refusing the plaintiffs access;

(iv) Trespassing;

(v) Dealing with the property m any way which would breach the agreement.

4

In his grounding affidavit, Mr Reynolds, the plaintiff and joint receiver, avers that the defendant did not obey the order and because his continued breach thereof, Mr McDermott appeared before this Court on the 21st November, 2013, to purge his contempt.

5

Mr Gilroy had been advising and assisting the defendant in dealing with the receivers and accompanied him to a meeting with Mr Reynolds during the summer of 2012. Notwithstanding the difficulties with the mortgagor defendant, the receivers identified a purchaser, Mr Naughton, who signed a contract of sale in January, 2013 and was allowed into possession under a caretaker's agreement. The sale of the property was ultimately completed in December, 2013 or January, 2014.

6

This motion is concerned with events that occurred on the lands on Wednesday 28th and Saturday 31st August, 2013. It is not in dispute that a group of about eight or perhaps ten men went onto the land on Wednesday 28th and they included Mr Gilroy. The receivers do not accuse Mr Gilroy of doing damage but they say that persons in the intruders' group did substantial damage to fences and other property; they threatened and intimidated the security personnel who ultimately had to withdraw; and they erected barriers to prevent access. Some altercations took place between the group and the security men, including one in particular when a gate was forced closed. Gardaí from Naas attended at the scene, including Superintendent Ian Lackey.

7

On Saturday 31st August, 2013, a crowd variously estimated at between 100 and 300 came onto the land without consent and ejected the security personnel. Members of the crowd assaulted and threatened the security men - one photograph that is not disputed shows a Mr Corr, an employee of the LAS Group, being manhandled.

8

The plaintiffs claim that Mr Gilroy was a prime mover in these events. They allege that he was in contempt of the court order of the 5th March, 2012, by his involvement in organising the invasion of the land on Saturday 31st August, 2013, his presence there and participation in the events which included addressing the crowd. The receivers do not allege that Mr Gilroy was in contempt by his presence on the land on Wednesday 28th; they maintain that the significant thing that happened on that occasion was that Mr Gilroy was served with the court order containing the penal endorsement.

9

Mr Gilroy agrees that he was present on the land on both dates but he says that he was there by invitation and as an observer only and not as an organiser or active participant. He denies that he was served with the order properly or at all and that he was in contempt of court as alleged or at all.

10

The issues that fall to be determined accordingly are:

1. Was Mr Gilroy served with the court order having the appropriate penal endorsement under O. 41, r. 8 RSC on Wednesday 28th August?

2. If so, was he in contempt by his conduct on Saturday 31st August?

3. If so, what sanction, if any, is appropriate?

11

The motion is brought on affidavit evidence and the respondent, Mr Gilroy, submitted a number of affidavits. He served notice of cross-examination of all the plaintiffs' deponents and the application was heard over...

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