Hogan J. found himself in general agreement with the approach of Whelan J. in the Court of Appeal. He stated:
'I consider that before any question of contempt of court could arise there would need-in general at least - to be proper service of both the original summons in the first instance and in the case of alleged subsequent default in respect of non-compliance with any order, the personal service of the penally endorsed order required by Order 41 Rule 8.'
At paragraph 84 Hogan J, on behalf of the full Supreme Court, pointed out that service of the order in compliance with Order 42 Rule 8 was ' fundamental' .
The decision in Pepper Finance must be read in the context of the facts in that case and sight should not be lost of the essence of the requirement concerning service - it must be what is termed "valid service" or "proper service". This is manifestly so when one has regard to Order 121 Rule 7 which provides ; -
'Where personal service of any document is required by these rules or otherwise and it appears to the court that prompt personal service cannot be effected, the court may make an order for substituted or other service, or for the substitution for service of notice by letter, advertisement or otherwise.'
These Plenary proceedings initially sought a significant range of remedies but the remedy sought was quickly limited to the Declaration of Contempt referred to above. It is at one level understandable why the Plaintiff embarked on the Plenary action seeking a whole range of relief [and later limited the relief being sought with a view to expediting the hearing]. After all a full Plenary action was probably considered likely to generate greater publicity and have a greater impact in terms of getting a bed in secure care for B. The Plaintiff and her advisors probably considered it the best of the available options in order to hopefully achieve that end.
However, in terms of the relief now being sought this Plenary action might well be said to be akin to an exercise aimed at re-inventing the wheel.
It may well be that the contempt jurisdiction requires up-dating both in terms of procedure and available sanctions - but it is a well settled and discrete jurisdiction. Anyone accused of contempt does face the possibility of significant sanctions if found guilty of contempt of Court - and is entitled to have the correct procedure followed.
The fact that a person or body failing to give effect to a Court order is aware of the potential consequences does not mean that he, she or it is not entitled to the same procedural safeguards and requirements as a person entirely ignorant of the potential consequences. Put another way, everyone is entitled to have the correct procedure followed.
The correct procedure when seeking to invoke the contempt jurisdiction of a Court is to bring a motion for attachment and committal in accordance with the Rules. Separate considerations apply when a Court is dealing with a contempt in the face of the Court and/or when proceeding on its own motion. Here, we are dealing with an assertion of Civil Contempt made by the Plaintiff.
A Court dealing with a contempt motion will conduct a hearing and decide whether or not there is a contempt. Any finding of contempt is of significance. The Court is not obliged to go further at that point and Courts frequently afford the contemnor an opportunity to comply with the Court order and/or to otherwise purge the contempt. The Court has a discretion as to what, if any, sanction to impose.
A Court has broad powers in relation to the service of notice of proceedings on other parties and there is no obvious reason why notice of a contempt motion could not be directed to be served on other parties if the Court considered it desirable that this be done.
It is true that the High Court has a wide jurisdiction to grant Declaratory Orders. However, there is no good reason or need to resort here to the High Courts Declaratory Jurisdiction as the contempt jurisdiction and procedure is clear and long established. Importantly, the existing Contempt Jurisdiction allows for a finding of contempt without more.
This Court is not persuaded that the Plaintiff is entitled to the Declaration sought in these Plenary proceedings. Even if the order with the Penal Endorsement was validly served before the Plenary Summons was issued (and it was not), the Court sees no good reason or justification or basis for deviating from the procedure laid down in the rules for dealing with contempt applications. Quite apart from anything else granting such a Declaration could cause significant issues in the event of subsequent efforts to have sanctions imposed on the contemnor and/or in similar proceedings brought in accordance with the rules.
The Court will therefore decline to grant the Declaration sought in these proceedings and will hear the parties in relation to any matters arising on Thursday 11 th . April next after the Special Care List is concluded.