Amberley Construction Ltd v Beamish [2003] EWCA Civ 1267

Case No B2/2003/1613[2003] EWCA Civ 1267
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORTHING COUNTY COURT
(His Honour Judge Kennedy QC)
Venue Royal Courts of JusticeDate Thursday, 31st July 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE PETER GIBSON
LORD JUSTICE MANCE
Between
AMBERLEY CONSTRUCTION LIMITEDRespondent-v-
Between
PAUL DOUGLAS BEAMISHAppellant
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR LINCOLN CRAWFORD (instructed by Green Wright Chalton Annis Worthing, West Sussex, BN11 1TQ) appeared for Appellant.MR GOURLAY appeared for Respondent.
J U D G M E N T(As Approved by the Court)
Crown Copyright©Thursday, 31st July 2003J U D G M E N T

LORD JUSTICE PETER GIBSON:

[1]The defendant, Paul Douglas Beamish, appeals from the suspended committal order of His Honour Judge Kennedy QC in the Worthing County Court on 11th July 2003 committing him to prison for 28 days for contempt.[2]Mr Beamish is a project manager on construction sites. He was sued by the claimant, Amberley Construction Ltd, for damages for breach of an employment contract. On 21st May 2002 the claimant obtained judgment against Mr Beamish for £7,500. He was ordered to pay to the claimant that sum within 14 days. He did not pay that sum or any part of it. He was ordered at some stage last year, after the claimant obtained judgment, to attend at Worthing County Court on 10th January 2003 to provide information about his means and any other information needed to enforce the judgment or order. He was also ordered to produce at court all documents in his control which related to his means of paying the amount due and to answer on oath all questions which the court asked.[3]On 10th January 2003 Mr Beamish did not attend at Worthing County Court. On 15th January His Honour Judge Anthony, at a hearing at which Mr Beamish did not attend, found him guilty of contempt by disobeying the order of 21st May 2002. He was committed to prison for 14 days, that order being suspended so long as he attended court on 25th April 2003 and complied with the earlier order.[4]On 25th April 2003 Mr Beamish did attend court. The court record of the examination showed the answers which Mr Beamish gave to a number of questions. When asked whether he had any bank, building society or other accounts, he answered that he had a current bank account with the National Westminster Bank ("the Bank") at its Chichester branch, and he did not know the account number. The balance was £3,112.73, to which the court officer receiving the answers had added the comment "Mini statements seen". They were in fact bank withdrawal slips showing the balance in the account after the withdrawal. Mr Beamish further said that the account was in his sole name. Mr Beamish also referred to two other accounts, one with the Woolwich and the other with the Alliance & Leicester, both in his sole name and both with credit balances.[5]He certified that the record was a correct record of the answers which he gave to the questions in the document. The record does not in fact refer to the answers as having been given on oath. The judge certainly treated the answers as having been given on oath and, as I have said, when required to attend he was told he would be required to answer on oath the questions asked by the court. The position is not clear as to whether or not the answers he gave were on oath, but the court has been told by Mr Gourlay, a director of the claimant, that Mr Beamish in fact did give his answers on oath. At the foot of the penultimate page of the record of examination was written in manuscript:
"Mr Beamish to supply to the court within 14 days copies of..."
Then three documents are mentioned, of which the second is the most relevant:
"2. Copy most recent bank statement."
[6]The requirement to produce the three documents was referred to in an order made on 5th June 2003 by His Honour Judge Bennett QC, who appears to have considered the matter on the papers. He found Mr Beamish guilty of contempt of court in disobeying the order of 25th April 2003. That judge committed Mr Beamish to prison for 14 days. The order was suspended, so long as he attended court on 26th June and complied with the order of 25th April by producing the three documents. On 23rd June 2003 Mr Beamish wrote a letter to the court. It purported to deal with the three documents which he had been required to produce. I need only refer to paragraph 2 of that letter:
"Please find enclosed my bank statements from April 2003 to June 2003 as requested."
Those were not bank statements. They were the so-called "mini-statements" or bank withdrawal slips.[7]The claimant applied for a third party debt order in respect of the account with the Bank to which Mr Beamish had referred in his answers on 25th April 2000. By 26th June the amount owing under the judgment debt had risen to over £8,000. An interim third party debt order was made against Mr Beamish on 26th June 2003, and 7th August was fixed for the hearing date when the court would consider whether to make a final order.[8]On 27th June 2003 the parent company of the Bank wrote to the court to say that the Bank had no account in the name of Mr Beamish. In consequence, on 1st July the interim third party order was discharged and the hearing on 7th August vacated.[9]On 9th July Judge Kennedy, of his own motion, reviewed the documents which had been filed, and he made a direction that Mr Beamish attend before him at 12.30 pm on 11th July:
"... to explain the evidence given on oath about his account with [the Bank] in Chichester in view of the information contained in the letter attached and to produce all documents in his possession relating to the said account and his accounts with Woolwich Plc and Alliance & Leicester Plc for the period from 1 July 2002 to date."
The direction contained a penal notice. It gave permission to serve the direction on short notice.[10]Mr Beamish received the direction the same day. He wrote to the court that day, saying that the letter said to have been attached was not attached and that he could not attend on 11th July. He said he was willing to supply "the copy statements which have been requested by the claimants", but he asked for a few days to collate and copy them. He asked for an adjournment of the hearing fixed for 11th July.[11]That was not granted. Mr Beamish appeared before the judge on 11th July. We now have a transcript of what occurred. The claimant was not represented nor did he appear. The claimant does not appear to have been notified of the hearing. Mr Beamish was there in person with no legal representative.[12]The transcript shows that the judge asked Mr Beamish a number of questions. The transcript is in two parts in effect: one when Mr Beamish was not on oath and the other when he was invited to give evidence on oath. The judge asked questions relating to Mr Beamish's account with the Bank and a letter, which the judge said had been sent in by Mr Beamish -- that must be the letter dated 23rd June 2003 to which I have already made reference -- enclosing the "mini-statements". The judge asked him about that account. Mr Beamish said that he was running a certain amount of business through that account. When asked by the judge what was the account number, Mr Beamish said that he had not got it on him and he did not know that he needed to bring it with him. There then followed this exchange: THE JUDGE:
"Mr Beamish, I suggest you stop trying to impress on me that you cannot read and cannot think sensibly because -- MR BEAMISH: I'm sorry, I didn't mean to give that impression, sir. THE JUDGE: Well, you are trying to give it but it is not succeeding."
The judge asked further questions about the account, Mr Beamish saying that he used to have an account with the Bank. The judge referred Mr Beamish to what he had said on 25th April 2002, and then there followed this exchange: THE JUDGE:
"... Why did you mislead the court? MR BEAMISH: Well, I didn't do it intentionally. I had an account there and I didn't, I didn't quite understand, I suppose. THE JUDGE: I do not believe you, Mr Beamish."
[13]At that point Mr Beamish was invited by the judge to go on oath, and Mr Beamish agreed. After being sworn, the judge then asked further questions. All this occurred without the judge cautioning Mr Beamish against self-incrimination. The judge examined Mr Beamish further about the account. Mr Beamish said that on 25th April 2002, as far as he was aware, he had an account with the Bank and was trying to sort out a problem with it. He was asked about the "mini statements" and said that he had used a bank card to withdraw cash from the account which was in his wife's name. The judge asked why Mr Beamish misled the court. Mr Beamish said that it was not deliberate. There then followed this exchange: Q. You are playing games. Stop it. Is that clear? A. Yes, sir. Q. Do you know that for a refusal to answer questions properly or a refusal to produce documents or for refusing to give the court information that it is entitled to have under this procedure I can commit you to prison for contempt? A. No, I sincerely hope not, sir. Q. To the contrary, I can. Do you know that what you told the court on 25th April, assuming as I do that it was deliberate, is perjury? A. It, well, I-- Q. Do you know what-- A. Please may I say something, sir? Q. You had better just answer my questions first? A. Sorry. Q. So that you do not dig yourself in any deeper. Do I make myself clear? A. You did, sir. Q. Right? Do you know what the penalty for perjury is? A. I'm not familiar, sir." Then the judge told Mr Beamish what was the maximum penalty for contempt of court.[14]The judge then informed Mr Beamish of what the judge himself had done to obtain information. The judge said that he had rung the legal office of the Bank and, in consequence, had obtained a letter. We have a copy of that letter, which appears to have been that which was intended to have been attached to the judge's direction. The letter indicates that it had located an account in Mr Beamish's name which had been closed on 5th September 2002. Mr Beamish accepted that the contents of that letter were correct. When asked if he knew that on 25th April 2003, he said that he was still negotiating with the Bank. The judge then said that Mr Beamish had crossed the very narrow boundary between flannel and perjury. When Mr Beamish said it was not deliberate, the judge said:
"Of course it was deliberate, Mr Beamish. Please do not talk nonsense."
[15]After further exchanges,

the judge said:

"You are in very serious trouble. It is about the worst case of deliberate obfuscation and misleading that I have come across in this procedure for many years. Is that clear? A. I apologise, sir. Q. There is no way in which an apology is going to cover it."
The judge indicated that he proposed to make a committal order, saying it was a bad case, to which Mr Beamish responded:
"Can I just pay the debt, sir."
He explained that that was the debt owed to the claimant. He asked for 28 days. The judge indicated he might consider suspending the committal order if Mr Beamish did pay the debt, but he was only prepared to allow seven days. The judge also required Mr Beamish to pay not only the judgment debt but also £200 costs incurred by the claimant and £200 court costs. The judge then made the committal order.[16]In the committal order it was stated:
"And the court is satisfied having considered the facts disclosed by the evidence and/or admitted in court by him/her that Paul Douglas Beamish has been guilty of contempt of this court by disobeying the order ... dated 25 April 2003 by ... 1. Failing to produce on 25th April 2003 the documents in accordance with the order in form N39 (order to attend) 2. On oath misleading the court on 25th April by alleging he had current account with [the Bank] at Chichester and producing cash withdrawal slips in fact drawn on his wife's account. 3. By letter of 23rd June 2000 further misleading the court as in 2 above."
The penalty imposed for each of those contempts was 28 days concurrent. The description of the three acts of contempt as disobedience of the order dated 25th April 2003 cannot be right. The first appears to be disobedience to the order of 5th June requiring his attendance at court and to produce documents. The second appears to be a failure to answer truthfully the questions asked of him on 25th April 2003. The third also appears to be a finding that Mr Beamish was untruthful about the account with the Bank in the letter of 23rd June 2003.[17]On 18th July 2003, shortly before the committal order was to take effect if payment of the sums ordered was not made, Mr Lincoln Crawford appeared in this court for Mr Beamish to appeal against the judge's order. No transcript of what the judge had said was then available, and this court, consisting of myself and Longmore LJ, indicated that we would not hear the appeal without knowing what the judge had said. We directed that a transcript be made available and that notice be given to the claimant of the hearing of the appeal. On that basis we suspended the judge's order until the determination of the appeal.[18]Today Mr Beamish is again represented by Mr Crawford. The claimant appears by Mr Gourlay, who is the director of the claimant. The claimant's solicitors have helpfully provided us with a chronology, a statement prepared by Mr Gourlay, and a letter dated 25th June 2003 to the county court containing details of what the claimant says are the failures by Mr Beamish to produce requested documentation to the court. Mr Gourlay is understandably aggrieved by the conduct of Mr Beamish, which has cost the claimant a lot of money, and he says that the delays have eroded the value of the judgment debt. However, as the solicitors correctly appreciated, the matters before this court today are not concerned with Mr Beamish's behaviour in relation to the claimant, deplorable though that has been, but with whether the correct procedures have been followed by Judge Kennedy when committing Mr Beamish to prison.[19]Mr Crawford submits, first, that the order was defective in that the committal process was being used to enforce the judgment debt; and that, he says, is not permissible. It is certainly correct that a committal for contempt like this should be concerned only with whether the alleged contemnor's behaviour in the face of the court amounted to contempt. I agree that in general it is desirable that matters of contempt between the contemnor and the court should be kept separate from matters relating to private law rights between the contemnor and another party. In this case, however, it was at the suggestion of Mr Beamish that the judge included the term requiring payment of the judgment debt. I would not discharge the judge's order on that ground.[20]Mr Crawford's second point is that the judge failed to make clear to Mr Beamish what the acts of contempt were in that the judge referred to perjury and disobedience to the court's order without letting Mr Beamish know precisely for what he was being punished. I think that there is some substance in this point. Certainly the order listing the acts of contempt is confused, for the reasons already given. What the judge appeared to be saying to Mr Beamish in court was that Mr Beamish was being punished for misleading the court by his answers to the questions asked of him on 25th April 2003 and by his letter of 23rd June referring to his account. Whether Mr Beamish should have appreciated that there were three separate acts of contempt as set out in the judge's order before that order was made is a point which I will consider under the heading of Mr Crawford's third and most substantial point, and that is that the judge did not follow the appropriate procedures. A Practice Direction, headed Committal Applications, supplements the Rules of the Supreme Court Order 52, incorporated in Schedule 1 to the Civil Procedure Rules, and County Court Rule Order 29, incorporated in Schedule 2 to the Civil Procedure Rules. This sets out the procedures which should be followed on any application for an order for committal of a person to prison for contempt of court; and in Part II there is additional provision made for a committal application relating to a contempt in the face of the court. Paragraph 1.2 of the Practice Direction makes clear that the county court has jurisdiction to punish such contempts. Paragraph 1.4 draws specific attention to the fact that the rights of those involved under the European Convention on Human Rights must particularly be borne in mind. It states that it should be noted that the burden of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt.[21]Part II contains the following provisions which are, in my view, relevant. Paragraph 12 provides:
"Where the committal application relates to a contempt in the face of the court the following matters should be given particular attention. Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection."
Then in paragraph 13 it is stated that the provisions of Part I of the Practice Direction should be applied as necessary or adapted to the circumstances, and that, in addition, the judge should inform the alleged contemnor of a number of matters. The particular matters relevant are:
"(2) inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application; ... (4) have regard to the need for the respondent to be- (a) allowed a reasonable time for responding to the committal application, including, if necessary, preparing a defence; (b) made aware of the availability of assistance from the Community Legal Service and how to contact the Service; (c) given the opportunity, if unrepresented, to obtain legal advice; ... (e) brought back before the court for the committal application to be heard within a reasonable time. (5) The judge should allow the respondent an opportunity to. (a) apologise to the court. (b) explain his actions and behaviour; and (c) if the contempt is proved, to address the court on the penalty to be imposed on him."
[22]The provisions in Part I of the Practice Direction which are applicable, with suitable adaptation, to a case such as the present include(a) that a claim or application should set out in full the grounds on which the committal application is made and should identify separately and numerically each alleged act of contempt (see paragraph 2.52 and 2.62),(b) the need for written evidence in opposition to be filed, unless the court otherwise directs (paragraph 3.2), and(c) that the hearing of the committal application should be not less than 14 days after service of the claim form or application, unless the court otherwise directs (see paragraph 4.2).[23]Mr Crawford submits that the judge should have adjourned the case so that Mr Beamish could take legal advice, that Mr Beamish should have been informed in writing of the precise conduct which gave rise to the alleged contempt and that he should have been given an opportunity to prepare a defence.[24]I agree with Mr Crawford. What occurred in the present case conformed neither with the letter nor the spirit of the Practice Direction. The judge's direction on 9th July merely indicated that Mr Beamish was to attend at court, and then only on two days notice, to provide an explanation about his bank account in view of information contained in the letter said to have been attached but not in fact attached. Thus, that part of the direction was in any event defective. Mr Beamish was also required to produce particular documents.[25]At the hearing the judge found himself in the role of both prosecutor, examining the person whom the judge himself was alleging to be the contemnor, and judge. I appreciate that county court judges may find themselves from time to time in such an invidious situation, but the need for particular care and strict compliance with the procedural safeguards is all the greater in such circumstances, the more so when the alleged contemnor is unrepresented.[26]The judge could see that Mr Beamish was unrepresented. The judge never complied with the requirements of paragraph 13(4)(b) or (c). The judge knew that Mr Beamish had not been told in writing or at all in advance of the hearing what acts might be said to constitute the contempt. Before the hearing the judge did not articulate the three contempts which by his order he found. The judge did not allow a reasonable, or indeed any, time to Mr Beamish to prepare his defence to the matters which were put to him by the judge. The judge, in my judgment, therefore failed to give effect to what the Practice Direction required. In contrast to applications by another party for contempt, instead of 14 days being allowed after notice has been given of the detailed formulation of the charge or charges, only two days' notice of matters which were to be explained by Mr Beamish was given, and, as I have said, it was given in a defective form because of the failure to attach the letter said to have been attached to the direction. The trial, the conviction and sentence all occurred at one and the same time. No opportunity was afforded to Mr Beamish to reflect on what had occurred and offer a full explanation for the contempts which were found. I can well understand the judge's impatience with Mr Beamish, who was trying to say both that on 25th April 2003 he had a bank account which, although closed, was one about which he was in negotiations with the Bank and who was at the same time saying that on that date there was another account in his wife's name which he was using for his business purposes and into which he was paying money and from which he was drawing money. Neither of those explanations corresponded with or justified the answer Mr Beamish gave on 25th April 2003. However, it is not apparent why the judge thought it necessary or appropriate to deal with the matter in the way that he did with such apparent urgency.[27]In Nicholls v Nicholls [1997] 1 WLR 314 at page 327, Lord Woolf MR, with whom Auld and Ward LJJ agreed, gave guidance on the approach to be adopted on appeals in committal cases. The Master of the Rolls said that as committal orders involved the liberty of the subject, it was particularly important that the relevant rules were duly complied with. He said that as long as the contemnor had a fair trial and the order had been made on valid grounds, the existence of procedural defects would not result in the order being set aside except in so far as the interests of justice required that to be done. He further commented that the interests of justice would not require an order to be set aside where there was also no prejudice caused as a result of errors in the application to commit or the order to commit.[28]In the present case I have no doubt but that the interests of justice do require the committal order to be set aside. The defects in the procedure adopted by the judge are simply too serious and too prejudicial to Mr Beamish to allow the order to stand. In my judgment there has also been a breach of Mr Beamish's Convention right under Article 6 to a fair trial. The protections which are indicated in Article 6.3 have not been afforded to him. In these circumstances, I would allow the appeal and set aside the judge's order.[29]However, I would add one final comment. From the material put before us, it would appear that Mr Beamish did not give a truthful answer to the question asked of him on 25th April 2003 as to his bank accounts. If his wife's account is in truth his own and the monies in it belong to him, the claimant is entitled to full details of that account. Mr Beamish remains at risk of further proceedings against him so long as he does not correct his answers and reveal the true position as to his bank account. Let him be warned.

LORD JUSTICE MANCE: I agree. The breaches of proper procedures and of general fairness were, in my judgment also, too serious for us to be able to regard the outcome as safe or one which can stand. The case of Berry Trade Ltd v Moussavi [2002] EWCA Civ 4771, WLR 1910, indicates that committal for breach of an order, or in my view a fortiori for telling lies in the face of the court, ought to be regarded as a criminal procedure within the meaning of Article 6 of the European Convention on Human Rights.

[31]In those circumstances, quite apart from the other breaches of procedure and the failure to give Mr Beamish the opportunity of taking legal advice, it seems to me that the judge's questioning amounted to interrogation designed to elicit, and which did elicit, admissions against interest. No warning about the potential for self-incrimination was given and the questioning was severe. That was, in my judgment, inappropriate and reinforces the conclusion that the judge's order cannot stand.

Order

Appeal allowed. Permission to appeal to the House of Lords refused.