Court of Criminal Appeal upholds High Court’s refusal of Article 40 application

Our Hugh Kane, Partner and David Walsh, Associate of the Commercial Litigation Team discuss a recent judgment of the Court of Criminal Appeal affirming a judgment of the High Court in what is a definitive ruling on the application of Order 42 Rule 20 of the Rules of Superior Court

Kane Tuohy LLP, on behalf of their UK liquidator client, was Notice Party to the Applicant’s Article 40 proceedings entitled “Sean Christopher Hennelly v The Governor of Mountjoy Prison The High Court Record No. 2021/1607 SS, The Court of Appeal Record No. 2021/285”.

 Background

The Applicant, who stood incarcerated in Mountjoy Prison on foot of his continued contempt of a High Court Possession Order, brought an application pursuant to Article 40.4.2 of the Constitution of Ireland arguing that his detention was unlawful.

In the underlying proceedings, all before the High Court, Kane Tuohy LLP had successfully taken steps to obtain an Order deeming a UK judgment against the Applicant recognised and enforceable in Ireland, a Well Charging Order for Sale (over property where the Applicant was the sole registered owner), an Order for Possession over the property and, thereafter, arising from the Applicant’s contempt of the Possession Order, an Order for the Attachment and Committal of the Applicant.

An execution Order of Committal issued from the Central Office of the High Court in December 2019; however, as efforts were made over the course of almost two years to secure possession of the property without the need to incarcerate the Applicant, the Order expired. Having been unable to secure possession of the property, Kane Tuohy LLP applied for, and obtained, a fresh Order of Committal in September 2021, which Order, was acted on by An Garda Siochana in November 2021 when the Applicant was arrested and committed to Mountjoy Prison.

The Article 40 Application

The Applicant raised two main arguments in the High Court. Firstly, the Applicant argued that Order 42 Rule 20 of the Rules of Superior Court directed that an Order of Committal could only be valid for one year and it must be renewed within that year with the leave of the Court. On this basis, the Applicant argued that the Central Office did not have jurisdiction to grant a fresh Order of Committal in September 2021. It was further argued that there was no procedure set down in the Rules which permitted an Order of Committal to expire and for a party to thereafter apply for a fresh one.

Secondly, the Applicant argued that as an Order of Possession (rather than an Order for Possession) had not been obtained, the UK Liquidator was not entitled to apply for and obtain an Order of Committal.

In response, the Governor of Mountjoy Prison argued that the Order of Committal issued in September 2021 was good on its face and therefore, the Applicant’s detention was lawful. Furthermore, it was argued that the Applicant’s submissions that an Order of Possession was required before the issuance of an Order of Committal was entirely irrelevant in the context of a case where the High Court had already found the Applicant guilty of contempt.

The High Court’s Judgment  

Mr. Justice Barr determined that the Applicant was lawfully detained and the second issued Order of Committal was good on its face. If the Applicant wished to, he could have sought to challenge his detention was by way of appeal of the underlying Possession and/or Attachment and Committal Orders, and/or by way of a judicial review of the issuance of the second Order of Committal. The Court noted that the Applicant had chosen not to take any of these steps.

On the substance of the application, Mr. Justice Barr determined that there was no “fundamental irregularity” or “unfairness” in the making of either of the Orders of Committal in 2019 or 2021. Moreover, and relying on statements made by Judges of the High Court in the cases of “Wymes -v- Teehan 1988 IR717” and “Carlisle Mortgages Limited -v- Canty 2013 3IR406”, there was no prohibition whatsoever on the UK liquidator applying for and obtaining a fresh Order of Committal in circumstances where the previous Order had not been renewed with the leave of the Court.

The Criminal Court of Appeal

The Applicant appealed the High Court’s Judgment to the Court of Criminal Appeal where (similar) arguments on behalf of the Applicant and on behalf of the Governor of Mountjoy Prison were heard before the President, Mr. Justice Barnivlle and Ms. Justice Ni Raifeartaigh. In delivering her ex tempore judgment – as approved of by the President and Mr. Justice Barnivlle - Ms. Justice Ni Raifeartaigh upheld Mr. Justice Barr’s Judgment in its entirety and the Court did not find favour in a single argument presented by the Applicant to the affect that his detention was unlawful, that the UK liquidator was not entitled to seek and obtain a fresh Order of Committal in September 2021 or that an Order of Possession ought to be obtained before applying for and obtaining an Order of Committal.

During the course of the hearing before the Court of Criminal Appeal, the President, on a number of occasions, noted that, if the Applicant wished to be released from his detention, all he had to do was purge his contempt of the Court’s underlying Possession Order.   

A link to the High Court’s judgment can be found here:
https://www.courts.ie/acc/alfresco/da12a01f-3d7f-4b9f-9984-65786285c434/2021_IEHC_723.pdf/pdf#view=fitH

A link to the Court of Criminal Appeal’s judgment can be found here:
https://documentcloud.adobe.com/link/review?uri=urn:aaid:scds:US:e1d66624-8b69-3a47-8482-a8a0755d25d8

This Article is not intended as legal advice. For further information on Orders for Possession, Orders for Attachment and Committal, Article 40 applications, High Court enforcement procedure and all general matters relating to legal advice in the context of contentious disputes, please contact our Hugh Kane or David Walsh, details as below.  

AUTHOR

Hugh Kane, Partner  
E:  hkane@kanetuohy.ie 

David Walsh, Senior Associate  
E:  dwalsh@kanetuohy.ie