Claims made on affidavit lead to a charge of criminal contempt


By McDowell Purcell \ In All Posts, Banking, Litigation & Dispute Resolution

In the recent case of Allied Irish Banks plc v. McQuaid & ors  [2017] IEHC 485, Mr Gilroy, the second defendant in the proceedings, pleaded guilty to criminal contempt arising out of the contents of his affidavit made in response to an application for attachment and committal brought by AIB.

Contents of the affidavit

Various allegations were made on affidavit including accusing the court of “criminal intimidation and threats” and comparing the actions of the court to that of a thief putting a gun to his head and robbing him of his wallet. Mr Gilroy described the legal profession as members of a” semi-secretive society” who “hide their criminality” behind the guise of the Law Society. The Judge presiding over the proceedings, was also accused of having a “superiority complex” on account of being satisfied that the court had jurisdiction and of being in breach of his oath of office. Reference was made to correspondence between Thomas Jefferson and the French cleric Abbé Arnoux in 1789 wherein Thomas Jefferson offered the view that it would be better to leave a cause to be decided by the toss of a coin rather than to a judge biased against one side.

The affidavit in question ended with the statement “for now I consider the matter at an end”. The defendants may have considered the matter to be at an end however the court, of its own motion and at the behest of the plaintiff, considered the content of the affidavit in circumstances where Mr. Gilroy accepted that he was guilty of criminal contempt.

The law

In the past, criminal contempt has been defined in the Irish courts as conduct such that “wild and baseless allegations of corruption or malpractice are made against a court so as to hold the judges […] as actors playing a sinister part in a caricature of justice” (see State (D.P.P.) v. Walsh [1981] IR 412). The judgment of the Supreme Court in Keegan v. de Burca [1973] IR 223 recognises criminal contempt as “behaviour calculated to prejudice the due course of justice” and highlights the manner in which the court should approach incidences of criminal contempt whereby the punishment should be commensurate with the offence.

Outcome

In the present case, Mr Justice Brian McGovern of the High Court was of the view that the defendant’s affidavit was so spurious in nature as to represent a direct attack on the court and the administration of justice. He said that it was calculated to bring the administration of justice into disrepute and diminish the authority of the court. Despite admitting that he had committed criminal contempt and apologising to the court for the contents of the affidavit, Mr Gilroy was sentenced to an Order of Community Service under the Criminal Justice (Community Service) Act 1983.

Interestingly a few days after this judgment was handed down, the Presidents of the High Court and the Court of Appeal introduced a new Practice Direction (HC72 McKenzie Friends). The new Practice Direction states that although litigants may obtain reasonable assistance in the court process from a lay person (often known as a McKenzie Friend, as the second defendant was considered to be in the above case), such lay persons have no right to act in an advocacy capacity. In other words, although a McKenzie Friend can provide moral support for litigants, take notes and quietly give advice on any aspect of the conduct of the case, a McKenzie Friend may not address the court, make oral submissions, examine witnesses, accept or demand a fee for their services, act as the litigants’ agent in relation to the proceedings or manage litigants’ cases outside court.

A full text of the judgment can be accessed here.

Further details of Practice Direction HC72 can be found here.

Authors: Maria Curran and Susie Higgins