The Supreme Court has agreed to hear an appeal brought by two members of the Travelling Community against an order requiring them to vacate local authority owned lands in Co Clare.
Clare County Council obtained a High Court injunction in 2019 requiring Helen and Bernard McDonagh, and their family, to vacate and remove their caravans and mobile homes from a site at Cahercallamore, Ennis, Co Clare they have been on since 2018.
The council claims the McDonaghs have no entitlement to be on the lands, where they built a roadway and a courtyard in what had been an orchard, in breach of the planning laws.
The McDonaghs, who claim they have nowhere else to go, appealed the High Court’s decision to the Court of Appeal (COA).
In November 2020 the COA upheld the High Court’s decision, resulting in a further appeal by the McDonaghs to have their case heard by the Supreme Court.
In a recent determination the Supreme Court granted the McDonaghs permission to have their appeal heard by it.
The court said the case raised of public importance, which in this case concerns the proportionality of the decision, that requires determination by it.
The Supreme Court said it will consider questions whether a housing authority in the position of the Council is obliged to consider the impact of removal on persons such as the applicants.
The court will also hear argument on whether the council should have considered the McDonaghs prospects for obtaining lawful accommodation elsewhere, as well as council’s own interests, powers and obligations as a landowner and as housing and planning authority.
When the matter was previously before the High Court the Council claimed that several members of the McDonagh family had failed to comply with the terms of the injunction.
Arising out of their failure to vacate the site the council brought further proceedings seeking the McDonagh’s attachment and possible committal to prison for contempt.
In August two member, Michael McDonagh and Bernard McDonagh Snr were found to be in contempt of court.
However, Michael McDonagh subsequently left the site and the attachment and committal orders against him were not applied.
At the High Court on Thursday the Council represented by James Connolly SC, appearing with David Quinn Bl secured orders against two more members of the family over their failure to leave the site.
Mr Justice Mark Heslin was satisfied to make order requiring John and Jim McDonagh, sons of Bernard Snr and Helen, were in contempt.
They should be attached by the gardaí and brought before the court to answer their contempt of court orders, he ordered.
The court heard they had remained in contempt of the court’s order. John McDonagh, the court heard was not living on the site, but his mobile home remained there.
However, Counsel said that in light of the Supreme Court’s decision regarding an appeal, his client was giving an undertaking not to act on the orders until the matter returns before the Supreme Court in October.
Counsel said that any application made on the McDonagh’s behalf to the Supreme Court to place a stay on the injunction, pending the outcome of the appeal, would be opposed by his client.
None of the McDonaghs were present in court. Traveller representative Ms Heather Rosen spoke on their behalf.
She told the court that they had not attended out of fear of being imprisoned.
Urging the court not to make any order against the McDonaghs she said the family did not want to be on the site, but they had nowhere else to go.
Ms Rosen, who was critical of the Council’s response to the McDonaghs housing needs, said they remained on the site not out of defiance or resistance but out of necessity.
Mr Justice Heslin said that while one could have sympathy for the McDonagh’s plight, orders of the court needed to obeyed.
While they were in contempt the judge said he was happy, given the council’s undertaking, to make attachment orders against Jim and John McDonagh.
The Council’s action against the McDonaghs arose out of related proceedings where the council sought to have the McDonagh’s vacate another site in Ennis, which they had previously resided at before it was destroyed by a fire in 2012.
The Council, which claimed the site was unsuitable, brought High Court proceedings against the McDonaghs in 2017 over their presence at that location.
The McDonaghs eventually moved from that site to the site at Cahercallamore in August 2018, resulting in the council’s taking another set of High Court proceedings.