Shell Ireland Ltd v McGrath

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 07 April 2006
• Neutral Citation: [2006] IEHC 108
• Court: High Court
• Docket Number: [2005 No. 840 P]
• Date: 07 April 2006

SHELL E & P IRELAND LTD v MCGRATH & ORS

BETWEEN

SHELL E & P IRELAND LIMITED

PLAINTIFF

AND

PHILIP MCGRATH, JAMES B. PHILBIN, WILLIE CORDUFF, MONICA MULLER, BRID MCGARRY AND PETER SWEETMAN

DEFENDANTS

[2006] IEHC 108

RECORD NO. 2005/840P

THE HIGH COURT

PRACTICE AND PROCEDURE

Contempt

Civil contempt - Refusal to purge contempt -Punitive powers - Double jeopardy - Breach of injunction - Whether court had power to punish refusal to purge contempt where injunction discharged - Flood v Lawlor [2002] 3 IR 67 followed - No further sanction imposed (2005/840P - Finnegan P - 7/4/2006) - [2006] IEHC 108; [2007] 1 IR 671 - Shell E & P Ireland Ltd v McGrath

Facts: the plaintiff had obtained statutory authority, pursuant to the Gas Act 1976, to construct a gas pipeline through the defendant's lands, in respect of which they had obtained a compulsory purchase order. On the 10th January, 2005, the defendants prevented the plaintiff s agents from entering upon the said lands to carry out surveys for the construction of the said pipeline. The High Court had granted the plaintiff an interlocutory injunction restraining the defendants from continuing to interfere with the entry by the plaintiff onto the said lands. The High Court in June, 2005, made an order committing the first to third defendants and two other persons, not party to the proceedings, to prison for failure to comply with the interlocutory injunction. They remained in prison for 94 days. Following the plaintiff s application for the discharge of the injunction, the contemnors were released in September, 2005. The High Court then adjourned for argument the issue of whether, having regard to the contempt found against each of the contemnors and their refusal to purge their contempt, it was appropriate that the Court should exercise in respect of any of them, its punitive powers.

Held by Finnegan P in declining to impose a further penalty on the contemnors that committal for civil contempt was primarily coercive, its object being to ensure that Court orders were complied with. However, in cases of serious misconduct the Court had jurisdiction to punish the contemnor. If the punishment was to take the form of imprisonment, then that imprisonment should be for a definite term. Moreover, committal by way of punishment should only be engaged where there had been serious misconduct and in such circumstances it could be engaged in order to vindicate the authority of the Court. In this respect, where the interest of the public in general was engaged or where there was a gross affront to the Court, the Court had an inherent power to proceed of its own motion to ensure that its orders were not put at nought. In this case, the period of 94 days spent in custody, while coercive in intent, contained a sufficient punitive element.

Reporter: P. C.

GAS ACT 1976 S40

GAS ACT 1976 S32

GAS ACT 1976 SCH 2 ART 3(2)

GAS ACT 1976 SCH 2 ART 9

GAS ACT 1976 ART 11(F)(iii)

COMMINS, STATE v MCRANN 1977 IR 78

KEEGAN v DE BURCA 1973 IR 223

JENNISON v BAKER 1973 QB 53

WHITTER v PETERS 1982 2 AER 369

FLOOD v LAWLOR 2002 3 IR 67

LAMB v LAMB 1984 FLR 278

HAUGHEY, RE 1971 IR 217

ROSS CO LTD v SWAN 1981 ILRM 416

MARTIN v BANNISTER 1879 4 QB 212

SEAWARD v PATERSON 1897 1 CH 545

YAGER v MUSA 1961 2 AER 561

DANCHEVSKY v DANCHEVSKY 1974 3 AER 935

SCOTT v SCOTT 1913 AC 417

HALSBURY LAWS OF ENGLAND 4ED RE-ISSUE VOL 9(1)

LAW REFORM COMMISSION CONSULTATION PAPER ON CONTEMPT OF COURT 4/1991

FRESTON, RE 1883 11 QB 545

AG v KISSANE 1893 32 LR IR 220

BETTINSON v BETTINSON 1965 1 AER 102

HATKINSON v HATKINSON 1952 2 AER 567

DANIELL CHANCERY PRACTICE 7ED VOL 1 725

OSWALD CONTEMPT OF COURT 3ED 248

TAYLOR v TAYLOR 1849 1 MAC & G 397

1 Judgment of Finnegan P. delivered on the 7th day of April 2006.

2 The Plenary Summons herein was issued on the 4th March 2005. The reliefs claimed included the following injunctive reliefs û

3 1. An Order restraining the Defendants, and each of them, their servants or agents, and any person acting in concert with them and any person having notice of the making of the Order from obstructing or continuing to obstruct and/or interfering or continuing to interfere with the entry by the Plaintiff on lands at Rossport in the County of Mayo and more particularly described in the Affidavit of Paul Gallagher sworn herein on the 4th day of March 2005.

4 2. An Order restraining the Defendants, and each of them, their servants or agents, and any person acting in concert with them and any person having notice of the making of the Order, from assaulting, battering or committing trespass to the person of the employees or agents of the Plaintiff at or near lands at Rossport in the County of Mayo and more particularly described in the Affidavit of Paul Gallagher sworn herein on the 4th day of March 2005.

5 3. An Order restraining the Defendants, and each of them, their servants or agents, any person acting in concert with them and any person having notice of the making of the Order, from intimidating or continuing to intimidate and/or threatening or continuing to threaten the employees or agents of the Plaintiff at or near lands at Rossport in the County of Mayo and more particularly described in the Affidavit of Paul Gallagher sworn herein on the 4th day of March 2005.

6 4. An Order restraining the Defendants, and each of them, their servants or agents, any person acting in concert with them and any person having notice of the making of the Order from continuing to cause or causing a nuisance at or near lands at Rossport in the County of Mayo and more particularly described in the Affidavit of Paul Gallagher sworn herein on the 4th day of March 2005.

7 5. An Order restraining the Defendants, and each of them, their servants or agents, any person acting in concert with them and any person having notice of the making of the Order from interfering or continuing to interfere and/or trespass or continuing to trespass on the lands at Rossport in the County of Mayo and more particularly described in the Affidavit of Paul Gallagher sworn herein on the 4th day of March 2005.

8 On the same day the Plaintiff issued a Notice seeking interlocutory relief to the like effect.

Background

9 The Corrib Gas Field is sited 65 kilometres from the nearest significant land mass the islands off the Mayo coast at the Mullet Peninsula and Achill Head on Achill Island. Between 2001 and 2004 the Plaintiff obtained the statutory consents required to commence development of the Corrib Gas Field. The Defendants oppose that development.

10 On the 15th April 2002 the Minister for the Marine and Natural Resources granted a pipeline consent for the construction of the import pipeline pursuant to section 40 of the Gas Act 1976 (as amended). As the necessary way leaves could not be obtained by agreement the Plaintiff applied to the Minister for the Marine and Natural Resources for Compulsory Acquisition Orders pursuant to section 32 of the Gas Act 1976 and these were granted by the Minister on the 3rd May 2002 and the 5th June 2002. In each case these conferred on the Plaintiff the right in relation to the lands the subject matter of the Orders û

"to use the relevant land for the construction, operation and maintenance thereon, therein or thereunder of a pipeline and such other works, services, facilities and other things as are necessary or expedient in relation thereto or are ancillary thereto or form part of such construction, operation or maintenance."

11 Each of the Defendants are owners of lands affected by the Compulsory Acquisition Orders. Each of the Defendants was notified under Article 3(2) of the Second Schedule of the Gas Act 1976 of the way leave deviation limits confirmed by the Minister pursuant to Article 9 of the said Schedule by letters dated 17th December 2001. They were each served with a Notice of Entry pursuant to Article 11(f)(iii) of the Gas Act 1976. They were each notified of the Plaintiff's intention to exercise its right of entry on or after the 10th January 2005.

12 On the 10th January 2005 the Plaintiff sought to enter upon the lands the subject matter of the said Compulsory Acquisition Orders in order to survey and peg the pipeline centre line and the boundaries of the working width way leaves which were the subject matter of the Compulsory Acquisition Orders. On that day and on a number of days following the Plaintiff was prevented by the actions of, inter alia, the Defendants from carrying out its intention.

13 The Plaintiff sought interlocutory relief in similar terms to the reliefs sought in the Plenary Summons to restrain the Defendants from continuing their conduct. The motion was heard by me over several days, the 18th March 2005, the 23rd March 2005 and the 4th April 2005. On the last mentioned date I made an Order restraining the Defendants from interfering or continuing to interfere with the entry of the Plaintiff on to the pipeline corridor and deviation limits through the lands at Rossport in the County of Mayo more particularly described in the Compulsory Acquisition Orders and delineated on the maps or plans appended thereto and thereon coloured red and green respectively. The Plaintiff undertook that until such time as further authorisation was received from the Minister the works they would carry out would be limited to surveying and pegging the pipeline route and fencing the deviation limits of the way leave. From the Affidavits sworn on behalf of the Plaintiff it appeared that if works were not commenced by the 1st June 2005 the Plaintiff would become liable to pay €25,000 per day in stand-by costs. Further if the works were not commenced by the 1st July 2005 they would not be completed by the end of October 2005 and would then have to be deferred until 2006 whereupon the...