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Court overturns finding of contempt against Shell over Corrib gas route

Mary Carolan - Irish Times

THE HIGH Court has overturned a finding that Shell EP Ireland acted in contempt of court orders two years ago when it went on to commonage lands located on the modified route for the Corrib gas onshore pipeline.

The president of the High Court, Mr Justice Nicholas Kearns, yesterday ruled that a November 2007 order of District Judge Mary Devins restraining entry on to the commonage unless in accordance with the Gas Act 1976 did not prevent Shell entering on to the commonage after acquiring a 1/62nd share of that land.

Shell acquired the interest in the commonage in May 2008 and went on to it in July and August 2008. Rossport South resident Monica Muller, a co-owner of the commonage, then applied to have the company held in contempt of the November 2007 order.

Shell should not have entered on to the lands for the purpose of carrying out tests without having first applied to Judge Devins to vacate her order and without the consent of Ms Muller, it was claimed. In September 2009, Judge Devins ruled Shell was in contempt but added she believed her November 2007 order was moot (pointless) given Shell’s acquisition of a share of the commonage. She required Shell to apply to vacate the 2007 order, which was done, and Shell also paid a donation of €3,000 to An Taisce’s planning unit and the legal costs of Ms Muller.

Shell appealed and Judge Devins referred legal issues in the matter for determination by the High Court. In his reserved judgment yesterday, Mr Justice Kearns said it was clear the November 2007 order did not absolutely prohibit any entry whatsoever on to the commonage lands by Shell. The order, made under Section 26.4 of the Gas Act, could not prohibit entry by Shell on to the commonage after it acquired a share in the commonage, he also ruled.

This was not a case where the evidence before the court indicated Shell had carried out works on the commonage of the sort prohibited by the 2007 order, the judge said. At best, the evidence indicated something other than walking or observation may have taken place but no other definitive findings emerged.

It might have been a quite different proposition had there been evidence of excavations or pipe laying activities or clear findings of fact to that effect. Having regard to the penal nature of a contempt finding, the District Court would have to be satisfied beyond reasonable doubt before finding a breach of its order had been committed, he said. If there was a reasonable doubt about the scope or proper interpretation of an order, that must be resolved in favour of the person alleged to have breached it.

It was clear District Judge Devins did not intend her order to prohibit entry on to the land in all circumstances, he said.

It was also notable the District Judge had not found she was satisfied beyond a reasonable doubt Shell had breached her order and committed contempt.

As regards the facts and the law, the matter was not brought home to the requisite legal standard to justify the finding by the District Judge Shell was guilty of civil contempt, he ruled.