Sullivan v Boylan and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Date04 October 2012

[2012] IEHC 389

THE HIGH COURT

[No. 8738P/2012]
Sullivan v Boylan & Ors
BETWEEN/
DERIDRE SULLIVAN
PLAINTIFF

AND

GERARD BOYLAN, GERARD BOYLAN BUILDING CONTRACTORS LTD. AND PATRICK MCCARTAN
DEFENDANTS

DAMACHE v DPP UNREP SUPREME 23.2.2012 2012 IESC 11

DPP v CUNNINGHAM UNREP CCA 11.5.2012 2012 IECCA 64

DPP v O'BRIEN UNREP CCA 2.7.2012 2012 IECCA 68

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S11

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S11(1)

AG v LEE 2000 4 IR 65

LOVETT v GOGAN 1995 3 IR 132

PIERCE v DUBLIN CEMETERIES COMMITTEE (NO.1) 2010 2 ILRM 73

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.5

KINSELLA v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 12.6.2011 2011/31/8437 2011 IEHC 235

FRISBY v SCHULTZ 1988 487 US 474

CONSTITUTION ART 40.6.1

CORNEC v MORRICE & ORS UNREP HIGH 18.9.2012 2012 IEHC 376

CONSTITUTION ART 40.6

CAMPUS OIL LTD v MIN FOR INDUSTRY & ENERGY (NO.2) 1983 IR 88

CONSTITUTIONAL LAW

Personal rights

Interlocutory injunction - Inviolability of dwelling - Right to enter and depart from home without hindrance - Protection of person - Harassment by third defendant - Demand for payment of alleged debt - Picketing of private dwelling house - Right of free speech and free expression - Balance of convenience - Whether demands intended to subject plaintiff to alarm, distress or humiliation - Whether damages adequate - Damache v Director of Public Prosecutions [2012] IESC 11, [2012] 13 ILRM 153; People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64, (Unrep, CCA, 11/5/2012); People (Director of Public Prosecutions) v O'Brien [2012] IECCA 68, (Unrep, CCA, 2/7/2012); Attorney General v Lee [2000] 4 IR 65; Lovett v Gogan [1995] 3 IR 132; Pierce v Dublin Cemetaries Committee (No 1) [2009] IESC 47, [2010] 2 ILRM 73; Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, (Unrep, Hogan J, 12/6/2011); Heeney v Dublin Corporation (Unrep, SC, 17/8/1998); Frisby v Schultz (1998) 487 US 474; Cornec v Morrice [2012] IEHC 376, (Unrep, HC, Hogan J, 18/9/2012) and Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88 considered - Non-Fatal Offences Against the Person Act (No 26), ss 10 and 11 - Constitution of Ireland 1937, Arts 40.3.2, 40.5 and 40.6.1 - Interlocutory injunction restraining third defendant from watching and besetting plaintiff's home granted (2012/8738P - Hogan J - 4/10/2012) [2012] IEHC 389

Sullivan v Boylan

1

JUDGMENT of Mr. Justice Hogan delivered on 4th October 2012

2

1. In the aftermath of the Supreme Court's decision in Damache v. Director of Public Prosecutions [2012] IESC 11, the Court of Criminal Appeal has taken the opportunity in a series of cases to emphasise what Hardiman J. described in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64 as the "intrinsic importance" of Article 40.5 of the Constitution - with its guarantee of the "inviolability" of the dwelling - to a free and democratic society.

3

2. In another post- Damache decision, The People (Director of Public Prosecutions) v. O'Brien [2012] IECCA 68, Hardiman J. also observed that:

"Article 40.5 by guaranteeing the 'inviolability' of the dwelling reflects long standing constitutional traditions in both common law and civil law jurisdictions, features of which were stressed in both Damache and Cunningham respectively. This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed by the saver to this guarantee."

4

3. While these comments were made in the sphere of criminal law, they may be thought to have a particular resonance for the present case, where so far from the plaintiff's own house being a "place of repose from the cares of the world", the actions of the third named defendant have contrived to make it a misery. How has this situation come about and what should the judicial response to such conduct be? These are essentially the issues which are presented by this application for an interlocutory injunction.

5

4. The plaintiff, Ms. Sullivan, lives in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as "Boylan contractors") in December 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all.

6

5. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to be put the matter into the hands of a debt collector, Patrick McCartan. It is the latter's conduct which has given rise to this application for an interlocutory injunction.

The Conduct of Mr. McCartan
7

6. The first contact which Ms. Sullivan had with Mr. McCartan was on 1 st August, 2012. She received a telephone call from him during which Mr. McCartan identified himself as someone who worked with financial institutions. He said that he had heard from Mr. Boylan and wanted to hear her side of the story. She had understood Mr. McCartan to be some kind of intermediary, and while Mr. McCartan sought a meeting, Ms. Sullivan indicated that she would get back to him.

8

7. Ms. Sullivan did not have to wait long for Mr. McCartan. He turned up unannounced on the 3 rd August, and appears to have allowed himself through the front door. Ms. Sullivan, whilst surprised, was not taken aback by this because Mr. McCartan did not then behave aggressively. He identified himself as the person who had rung earlier, and she invited him further into the house to show the difficulties which had arisen on the construction works. Mr. McCartan did not say that he was a debt collector but rather indicated that - or, at least appeared to indicate that - there might be some room for a constructive engagement between Ms. Sullivan and Mr. Boylan.

9

8. Matters changed for the worst on the 8 th August, when Ms. Sullivan received an email from Mr. McCartan claiming she owed the sum of €23,783.00. The email was in the following terms:-

"I can have Mr. Boylan accept if paid by Friday the sum of €20,000.00 of which payment must be made [directly to a particular bank account]. Failure for this to appear in the account by Friday 12 noon, my instructions are to act immediately and secure judgment and park our vehicle DEBT COLLECTOR fully signage outside your house and place of work. I really would prefer an amicable agreement to settle, however I have a responsibility to my client to collect as per instructions with less interruption from yourself. You do not need any more grief from neighbours and the site of a large van with signage directed and with your details is something that should be avoided. I expect your reply and settlement as per instructions above."

10

It was purportedly signed in the name of Greenbank Solutions Credit License 564337 licensed to operate in the UK, Ireland, USA, and Europe.

11

9. On receipt of this email Ms. Sullivan contacted her solicitor who, in turn, agreed to send on a letter to Mr. Boylan. On the 10 th August, Mr. McCartan contacted Ms. Sullivan by telephone. She explained that she had instructed her solicitor to handle matters with Mr. Boylan. Shortly after that she received a text message from Mr. McCartan in the following terms:-

"Deirdre you have refused to co-operate, I gave you a week and no reply. I am assuming no payment has been made. I have it made quite clear a full €23k is now required plus 10% our fee or we will expose you on this debt and will get it."

12

She received approximately seven further phone calls from Mr. McCartan from the same telephone number later that afternoon, but she did not answer them.

13

10. Not surprisingly, Ms. Sullivan was extremely distressed by this persistent calling and she sent him a text message asking him to desist from this. She then received a further text message from Mr. McCartan in the following terms:-

"My calls and presence will continue. You created the problem and agreed with me. I .... will embarrass you to your neighbours if you continue also a charge will be placed on your property and a judgment. Your choice as my client is correct."

14

Ms. Sullivan's solicitor, Mr. MacGuill, then wrote a further letter to Mr. McCartan asking him to desist from this conduct and drawing his attention to the provisions of s. 10 and s. 11 of the Non-Fatal Offences Against the Person Act 1997 ("the Act of 1997"), and indicating that any further direct approaches to her for the sums in dispute would be referred to the Gardaí.

15

11. Unfortunately, however, Mr. McCartan did not desist. He sent her an email on the 15 th August in the following terms:-

"Dear Madam,"

...

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