In Laois County Council v Hanrahan [2014] IESC 34, the Supreme Court heard an appeal against the High Court decision, to have the appellant held in contempt for failing to adhere to an order directing him to clean up an illegal dump site on his lands.

The Supreme Court found that the trial judge had improperly blurred the line between civil and criminal contempt, by ordering that the appellant, Mr Colm Hanrahan, should be jailed for a fixed period of six months unless he fully complied with the clean-up order in respect of his parents’ family farm.  The Supreme Court sent the matter back to the High Court for fresh consideration.

Background

On 6 April 2011, Laois County Council received an anonymous complaint that illegal dumping was taking place on an old quarry section of lands belonging to the Hanrahans.  A significant amount of deleterious and polluting waste material was deposited on the lands, the volume of which was estimated as being between 960 and 1840 tonnes. It was capable of polluting the groundwater. It also emitted "foul and offensive" smells. Having estimated the removal, remedial and associated costs at about €300,000, the Council sought relief under section 58 of the Waste Management Act 1996, as amended.

On 24 May 2012, the High Court made an order pursuant to section 58, which required the Hanrahans to discontinue holding, recovery or disposal of the waste on their lands, and to remedy the effects of depositing of waste which had already taken place. The order was complied with only insofar as no further dumping occurred, but it was otherwise disregarded. As a result, the Council issued a motion seeking orders for attachment and committal.

On 17 September 2013, Hedigan J. at the High Court made an order directing that the appellant (as lessee of the lands) be jailed for contempt for a period of six months unless he carried out certain remedial works.  Hedigan J. stressed that the making of the "unless" order, was a course of last resort, and had been decided upon so as to impress upon the appellant the importance and necessity of complying with the section 58 order. The appellant appealed to the Supreme Court against the order.

Decision

The Supreme Court set aside the order of the High Court and remitted the matter to that court for further consideration of the Council's motion for committal and attachment of the appellant.

Fennelly J. noted that the law with regard to contempt of court has traditionally made a clear distinction between criminal contempt, on the one hand, and civil contempt, on the other. He stated: "The object of criminal contempt is punitive; it is to uphold the law generally and the authority of the courts. The object of civil contempt is coercive: it is to enable one party to litigation to ask the court to compel another party to obey an order of the court which the first party has obtained. These categories are not entirely mutually exclusive but they are still the basic guide".

McKechnie J stated:  "The trial judge inadvertently conflated his coercive and punitive powers and in effect merged or rolled both into one. This, the law does not permit".

The following principles were found to apply in relation to the jurisdiction of the court to impose punishment for civil contempt:

  1. It will normally be a matter for the court to decide of its own motion whether the case is one which justifies the imposition of punishment, which may be a fine or a term of imprisonment, although there may be cases involving matters of purely private interest where the court may be invited to exercise the jurisdiction.
  2. The circumstances justifying the imposition of punishment will almost always include an element relating to the public interest, including the vindication of the authority of the court. The object is punishment, not coercion.
  3. A court should impose committal by way of punishment as a last resort. The contempt must amount to serious misconduct involving flagrant and deliberate breach of a court order. Mere inability to comply will not amount to serious misconduct.
  4. Committal by way of punishment inherently relates to conduct which has already taken place, not to future conduct. A person cannot be punished for his future conduct: that would involve preventive detention.
  5. Any imprisonment must be for a fixed term.

It was clear that the court order for committal had been imposed for coercive purposes.  Fennelly J. stated that: "Both the terms of the order and the explanation of it in the judgment show that the appellant was committed to prison for a fixed term of six months unless he complied with the terms of the order. This is not a permissible type of order."

Fennelly J. concluded that it should be left to the High Court, on rehearing, to consider all aspects of the appellant’s non-compliance with the clean-up order, and that he could not be committed to prison for contempt of court if it was impossible for him to comply with the order (Dublin City Council v McFeely [2013] 1 ILRM 40; Aranbel Limited v D’Arcy [2010] 3 I.R. 769).  However, the court held that the burden was on the appellant to show that he was financially unable to comply with the clean-up order.

Comment

This is an important decision, which clarifies the court’s jurisdiction to impose a term of imprisonment for contempt in a civil case.  It shows that a person cannot be imprisoned for future misconduct as that would involve preventative detention. In addition it highlights that mere inability to comply with a court order will not justify committal. Instead there must be serious misconduct, such as a flagrant and deliberate breach of the court order. It also highlights the difficulties and delays that can be experienced by local authorities in trying to secure the implementation of necessary remediation.