Supreme Court: Order prohibiting Shell from entering lands not rendered moot by acquiring share of land

About this case:

• Judgment:
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Concluding that Shell was guilty of civil contempt, Ms Justice Mary Laffoy was satisfied that the High Court judge’s rationalisation did not stand up to scrutiny when considered in the context of the factual and procedural background of the proceedings.

Background

In October 2007, Ms Monica Muller initiated District Court proceedings against Shell E&P (Ireland) Limited. The central issue was that Shell purported to give notice of its intention to enter commonage lands situate at Rossport in North County Mayo (hereafter “Rossport Commonage”), pursuant to the provisions of s. 26 of the Gas Act 1976, as amended, to carry out site investigations.

At the time, Ms Muller was the owner of one undivided sixty second share of the Rossport Commonage - however, she was not given notice of the intention of Shell to enter on the Rossport Commonage in accordance with the requirements of the Gas Act 1976, as amended.

At the time Shell was not the owner of any interest in the Rossport Commonage.

District Court

In November 2007 the District Court judge granted Ms Muller an order prohibiting entry on to Rossport Commonage by Shell, its servants and/or Agents, either to carry out site investigations or otherwise until such time as the provisions of the Gas Act 1976 were complied with.

In March 2009, Ms Muller brought an application in the District Court seeking orders for the attachment and committal of, inter alia, Shell for breaching the terms of the 2007 Prohibition Order on various dates in July 2008 and subsequently throughout January 2009.

By that time, Shell had acquired one undivided sixty second share in the Rossport Commonage.

In September 2009, the District Court in Ballina, County Mayo, found that Shell had been guilty of civil contempt.

High Court

Shell applied to the District Court judge to “State a Case” for the opinion of the High Court.

The questions of law posed for the opinion of the High Court were:

(a) Can the 2007 Prohibition Order made pursuant to section 26(4) of the Gas Act 1976 operate to prohibit the person against whom it was made from entering onto lands after that person has acquired co-ownership of those Lands?

(b) Was it open to the Court to hold that the 2007 Prohibition Order absolutely prohibited any entry whatsoever onto Rossport Commonage by Shell and thus hold that any such entry amounted to contempt?

President of the High Court, Mr Justice Nicholas Kearns observed that, given that the District Court judge herself took the view that the purchase by Shell of its share in the Rossport Commonage rendered the 2007 Prohibition Order moot, it undeniably created a certain sense of artificiality about the entire proceedings.

President Kearns was satisfied that:

Supreme Court

Delivering the judgment of the Supreme Court, Ms Justice Mary Laffoy said that President Kearns’ observation that the 2007 Prohibition Order was rendered moot overlooked the consequences of the ruling made by the District Court judge in September 2009 - which found that Shell was “guilty of civil contempt”.

On the contrary, the 2007 Prohibition Order was not rendered moot by the acquisition by Shell of the undivided share in the Rossport Commonage; it was a valid order until vacated.

Ultimately, Justice Laffoy found that the rationalisation by President Kearns in finding that the Order could not prohibit Shell from entering the lands after co-ownership had been acquired, did not stand up to scrutiny. Considered in the context of the factual and procedural background of the interaction between Ms Muller and Shell - this High Court finding was incorrect.

Accordingly, Ms Muller’s appeal was allowed - the District Court judge was correct in finding that Shell was in contempt by being in breach of the 2007 Prohibition Order.