Friday, September 23, 2022

A JUDGE called on Catholic clergy and a not-for-profit childcare provider in dispute over access to a community hall to stop and examine their common aims before irreparable harm was done to the community.

Judge Mary Morrissey made the appeal during proceedings between Kildavin Childcare and parish priest Fr Pat Hughes and the bishop of Kildare and Leighlin Denis Nulty last week at a special civil sitting of Carlow Circuit Court.

Judge Morrissey said before her were two very polarised parties.

“And what we have in the middle of this is 30 families that seek to avail of childcare in this area. Very clearly, there is huge uncertainty, upset and anger by all involved in relation to this matter.”

She added: “Believe it or not, you have commonality of purpose for the provision of services in the community … that’s where we start. Polarisation, vitriol is not where this community deserved to be.”

The focus of the dispute relates to the condition of Spellman Hall in Kildavin, in particular its electrical system and the nature and scale of improvement works that are required. A recent electrician’s report carried out on behalf of the clergy describe the hall’s wiring as “decrepit and dangerous.”

A hearing had been held over two days in July in the circuit court, which resulted in a court order, but Kildavin Childcare brought a motion last week claiming the defendants in the case, Fr Hughes and bishop Nulty, had failed to comply with it.

This was rigorously defended by the clergy’s legal team, who claimed the plaintiffs had ‘deliberately misled’ the court. Defending barrister Conor O’Doherty BL also highlighted “vile” social media comments about his clients on the childcare group’s Facebook page and that its members had made comments in the media. He claimed that his clients had been prejudiced and the plaintiff was in breach of the sub judice rules.

Judge Morrissey noted that she had called on both sides in July to come together and resolve their differences for the betterment of the community. However, matters had become only more entrenched.

Judge Morrissey invoked her powers under the Mediation Act inviting both sides to enter mediation.

“I am looking you in the eye to examine what I have said and examine in your heart what you are trying to achieve here,” she said.

Judge Morrissey warned if there was unreasonable refusal by a party to use or attend mediation, then it would have implications when it came to awarding costs.

“We have tried the carrot and the carrot did not work,” she said.

The parties would later agree to go into mediation after the court sitting.

Kildavin Childcare agreed during the hearting to remove all social media postings about the case following an application by the defendants and a suggestion of a hearing into a breach of the sub judice rule. Chairperson Sinead Murphy gave a sworn undertaking that the group would not comment to the media while the case was ongoing.

Mr O’Doherty stressed that his clients had not commented publicly on the case, but Fr Hughes also gave a similar sworn undertaking not to comment publicly. Judge Morrissey requested this to ensure a level playing field.

The July court order had granted Kildavin Childcare access to Spellman Hall, that Kildavin Childcare undertake work permitted for a fire safety certificate, that a schedule or proposed works be provided to the defendants by 3 August and approval should be provided by 8 August and not unreasonably upheld.

Barrister for Kildavin Childcare Brian Kearney said the day after this order was made the defendants had hired an electrician to assess the hall. The electrician had issued a hazard notice and Mr Kearney said a letter was sent to his instructing solicitor’s office that the hall’s insurers would be notified and the hall likely closed.

Mr Kearney’s said these actions “absolutely flung in the face of the recommendations the court made … there was no communication at what unfolded. It was a fait accompli.”

Kildavin Childcare had brought in its own electrician to assess works for a section of the hall. A second electrician’s report on behalf of the defendants was prepared on 31 August.

Mr Kearney said this 31 August report was done outside the timelines of the court order and there had not been sufficient time yet to address its contents with his client’s electrician. Mr Kearney sought an adjournment for this to done.

This adjournment was objected to by the defendants. Mr O’Doherty said one electrician his client had hired had inspected the hall on 6 August but would not provide a report after social media posts.

“The reason why (the electrician) the report is late is because the plaintiffs intimidation and breaching of the sub judice rule.”

Mr O’Doherty said it had been appropriate to seek an electrician’s report after the July hearing. Mr O’Doherty claimed that Kildavin Childcare had “trenchantly argued” that Spellman Hall was safe in July.

Mr O’Doherty said Kildavin Childcare had been invited to make their own report if they disputed the findings. Mr O’Doherty said Kildavin Childcare had instead moved on to get tenders for work.

“The plaintiffs knew no electrician is going to say that hall is safe,” he said.

In response, Mr Kearney said the defendants’ approach all along had been to “demonise” his clients.

Judge Morrissey granted the adjournment for a week to respond to the latest electrician’s report. Judge Morrissey said the report was stark and noted that the electrician’s description of the wiring as “decrepit and dangerous.” The judge said the report was arguably the best evidence currently before the court. Judge Morrissey also noted that Kildavin Childcare was in agreement that works needed to be carried out.

Judge Morrissey welcomed any further technical reports, as the best solutions would come from the experts. The judge said this may lead to a schedule of works and a timeline for a resolution. Judge Morrissey also warned both sides that legal costs would mount. The costs could reach hundreds of thousands if matters went to full hearing.

“I want you all to consider that. That money could be used to find a solution here, a solution for everybody.”

When the case was recalled last Tuesday, Judge Morrissey was told that both sides had agreed to mediation and had selected a mediator.

The judge adjourned the case until a December sitting.

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