Shell E & P Ireland Ltd -v- McGrath & Ors, [2006] IEHC 108 (2006)

Docket Number:2005 840 P
Party Name:Shell E & P Ireland Ltd, McGrath & Ors
Judge:Finnegan, P. / Smyth J.
 
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JUDGMENT BY: Finnegan, P.

2006 IEHC 108 THE HIGH COURT

RECORD NO. 2005/840P

BETWEEN

SHELL E & P IRELAND LIMITED

PLAINTIFF

AND

PHILIP MCGRATH, JAMES B. PHILBIN, WILLIE CORDUFF,

MONICA MULLER, BRID MCGARRY AND PETER SWEETMAN

DEFENDANTS

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

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

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.

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.

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.

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.

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.

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

Background

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.

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 -

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.

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.

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.

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 Plaintiff would incur a remobilisation fee of approximately 2,500,000. It was made clear by each of the Defendants that should such costs be incurred by the Plaintiff as a result of wrongful conduct on their part they would be unable to satisfy a claim for damages.

The Plaintiffs issued a motion returnable before the Court on the 29th June 2005 seeking the attachment and committal of the first named Defendant, the second named Defendant, the third named Defendant and two other persons not parties to the proceedings Vincent McGrath and Micheal O'Seighin for contempt of court in failing to comply with the Order which I made on the 4th April 2005. That motion was heard on that day by MacMenamin J. and an Order was made by him committing to prison the first named Defendant, the second named Defendant, the third named Defendant and the said Vincent McGrath and Micheal O'Seighin each of whom remained in prison until the 30th September 2005 that is for some 94 days.

On the 30th September 2005 the Plaintiff applied to the Court to have the injunction granted discharged: because of continuing difficulties in obtaining access to the site it had not been possible to progress works and as no works could be carried out during winter months the injunction was serving no useful purpose. This was a proper application for the Plaintiff to make and I discharged the injunction. An application was then made on behalf of the contemnors that they be released reliance being placed on The State (Commins -v- McCrann (1977) IR 80. At page 89 of the judgment Finlay P. said -

In civil contempt, on the other hand, a Court only moves at the instance of the party whose rights are being infringed and who has, in the first instance, obtained from the Court the Order which he seeks to have enforced. It is clear that in such cases the purpose of the imposition of imprisonment is primarily coercive; for that reason it must of necessity be in the form of an indefinite imprisonment which may be terminated either when the Court upon application by the person imprisoned, is satisfied that he is prepared to abide by its Order and that the coercion has been effective or when the party seeking to enforce the Order shall for any reason waive his rights and agree, or consent to the release of the imprisoned party.

On the application it was made quite clear that the contemnors were unwilling to purge their contempt and in particular were unwilling to undertake to comply with further Orders of the Court which might be made in this matter. Notwithstanding this I directed the release of the contemnors being satisfied that their detention at that time did not serve any coercive purpose. I indicated that I proposed to consider 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 the contemnors its punitive powers. On behalf of the contemnors it was argued that the injunction having been discharged on the application of the Plaintiff the Court enjoyed no powers to punish contemnors who had not purged their contempt. Having released the contemnors I adjourned this matter for argument.

Submission on behalf of the first named Defendant, the third named Defendant, Vincent McGrath and Micheal O'Seighin.

On behalf of these contemnors it is first argued that civil contempt is a coercive mechanism. In Keegan v de Burca (1973) IR 223 at 227 O'Dalaigh C.J. said -

Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the Order of the Court and the period of committal...

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