Dublin City Council v Thomas McFeely, Laurence O'Mahony and Coalport Building Company Ltd

Factual and Procedural Background

Company A (the fire authority for The City) initiated High Court proceedings under section 23 of the Fire Services Act 1981 because of serious fire-safety defects at an apartment complex referred to throughout the judgment as “The Premises.” On 17 October 2011 the High Court:

• Recorded a solemn undertaking by the Appellant to complete a three-phase schedule of remedial works, with Phase 1 to finish by 28 November 2011.
• Made an order mirroring that undertaking and set weekly review hearings.

Subsequent review hearings on 21 and 28 October revealed disputes about methods and interim “weekly targets.” On 4 November 2011 the High Court, without prior motion for committal, found the Appellant in contempt, ordered him off the site and gave Company A liberty to move for attachment and committal.

Company A issued that motion on 9 November. After hearings on 11 and 17 November the High Court committed the Appellant to The Prison for three months and imposed a €1 million fine.

The Appellant obtained a stay from the Supreme Court on the evening of 17 November pending this appeal, which was confined to the contempt finding and the associated penalties.

Legal Issues Presented

1. Whether the Appellant was in breach of the 17 October 2011 order and undertaking when the contempt finding issued on 4 November 2011.
2. Whether the High Court proceedings satisfied constitutional and procedural requirements of fair procedures before making a finding of contempt and imposing punitive sanctions.

Arguments of the Parties

Appellant's Arguments

• No breach could exist because Phase 1 was not due until 28 November and the High Court had ordered him off the site on 4 November, preventing completion.
• The High Court acted ex parte on 4 November: no motion for contempt, no notice of allegations and inadequate opportunity to cross-examine or give instructions, breaching fair-procedure rights.
• Weekly targets were never agreed or incorporated into any court order; therefore failure to meet them could not ground contempt.
• The penalties imposed (imprisonment and €1 million fine) were disproportionate and lacked a coercive purpose once he was barred from the site.

Company A's Arguments

• The Appellant changed methodology unilaterally and failed to progress critical external-wall works, amounting to a breach of his undertaking.
• The High Court is entitled to punish contempt to vindicate its authority and protect the public interest in fire safety.
• Any procedural deficiencies on 4 November were cured because the committal motion of 9 November provided the Appellant with notice before the sentencing stage on 17 November.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Breach of Order/Undertaking
The Supreme Court (per Judge Denham, with Judges Murray, Fennelly and Hardiman concurring) analysed the timeline and found that:

• The only operative obligations were those in the 17 October order and schedule, with a single completion date of 28 November 2011 for Phase 1.
• No weekly targets were ever incorporated into a court order or agreed between the parties.
• On 4 November the High Court ordered the Appellant and his workforce off the site, making future compliance impossible.
• A finding of breach two weeks before the contractual deadline, coupled with removal from the site, lacked any factual foundation.

2. Fair-Procedure Deficiencies
Judge Fennelly emphasised that contempt exposing a party to imprisonment is criminal in nature and demands strict observance of audi alteram partem principles. Key deficiencies identified were:

• No motion for attachment or committal was before the High Court on 4 November; the Appellant had no notice that a contempt determination would occur that day.
• The absence of particularised allegations denied the Appellant a fair opportunity to take instructions and cross-examine witnesses.
• The subsequent committal motion of 9 November could not retrospectively cure the lack of due process underpinning the earlier finding of guilt.

3. Nature of the Contempt Order
Because the Appellant was barred from the site, any imprisonment could serve only a punitive, not coercive, purpose. That heightened the need for scrupulous procedural compliance, which was missing.

4. Separate Concurring Opinions

• Judge Murray agreed with the result and added observations on the limited scope of section 23 of the Fire Services Act 1981.
• Judge Hardiman highlighted broader rule-of-law concerns, warning that contempt powers must be a last resort exercised with meticulous care.

Holding and Implications

APPEAL ALLOWED; CONTEMPT FINDING, IMPRISONMENT ORDER AND FINE SET ASIDE.

Immediate Effect: the Appellant is released from any liability to serve the three-month sentence or pay the €1 million fine.

Broader Implications: the judgment reinforces that (i) a party cannot be held in contempt for non-performance made impossible by a court order, and (ii) strict procedural safeguards—particularly clear notice and particulars—are indispensable before punitive contempt sanctions may be imposed. No new substantive precedent was created on fire-safety enforcement, and the residents of The Premises remain unaffected by the outcome of this appeal.