A woman who has been in prison for eight weeks over a failure to comply with court orders directing her to leave a €1 million south Dublin property, has lost an appeal over the order jailing her.
The Court of Appeal said, if there is to be any change in the status quo, the woman must “face up to the reality of the situation as the law has determined it to be” and purge her contempt.
She could do so by undertaking to leave the house with her two teenage children, who have remained in the property while she has been jailed where they are being looked after by a friend of their father, the woman’s estranged partner, it said.
After judgment was delivered, businessman Jerry Beades, who has assisted the woman in representing herself in her various court applications, indicated they may seek to appeal to the Supreme Court and seek bail pending any such appeal.
The woman was jailed by the High Court on April 27th over contempt of possession orders granted to EBS Ltd in 2015, which were upheld on appeal but stayed to April 2017.
Family home
The property is one of six investment properties purchased by the woman’s estranged partner with loans from EBS and his solicitors wrote to the lender in 2008 saying none of the properties was a family home.
EBS Ltd got a €9.4 million judgment against the man in 2011 over default on the loans, secured on the properties. Beltany Property Finance acquired the loans last year and retained Paul McCann, previously appointed by EBS as receiver over the properties, to deal with them.
The borrower has been adjudicated bankrupt and was alleged by the receiver to have been a party with the woman in breaking into some of the properties. He was described by the receiver as a “fugitive” from efforts to also serve contempt proceedings on him.
Rossa Fanning SC, for the receiver, argued that the woman has no entitlement to the properties and was engaging in “calculated defiance” of court orders because the “carrot” was a €1 million house in south Dublin “for free”.
On Thursday, the three judge appeal court, comprising Mr Justice Michael Peart, Ms Justice Mary Irvine and Mr Justice Gerard Hogan, refused the woman's appeal over the contempt orders on all grounds.
Mr Justice Peart, giving the judgment, said, while the woman contended she had obtained orders in family law proceedings including for a right of residence in the property and, if she complied with the order to vacate, would be surrendering her family law rights, those issues had been “conclusively” determined against her in earlier proceedings.
Merits
While the woman continues to believe in the merits of her arguments relating to the family law settlement and does not accept the High Court decision against her, she must as a matter of law do so, he said.
Addressing arguments that the High Court should have considered other alternatives rather than jailing her, the judge agreed the committal jurisdiction of the High Court in relation to civil contempt should, in the first instance, be coercive and a person should get a reasonable opportunity to comply with orders before being jailed for contempt.
In this case, such is the woman’s “unshakeable determination” not to comply, and her continued reliance on an issue fully decided against her, the court was entitled to jail her, he said.
She had shown “no willingness to deviate from the course which she seems willing and determined to follow”, despite the necessary separation from her children which her continued imprisonment entails, he said.
It remains the case she may purge her contempt at any time by agreeing to leave the property with her children, he said.
