Marshall Properties Ltd. v R H Tomlinssons (Trowbridge) Ltd. [2003] EWCA Civ 1314

[2003] EWCA Civ 1314
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BATH COUNTY COURT
(His Honour Judge Darlow)
Venue Royal Courts of Justice
Strand
London WC2
Friday, 24th January 2003
B e f o r e :
LORD JUSTICE WARD
And
LORD JUSTICE LAWS
Between
MARSHALL PROPERTIES LIMITEDRespondent-v-
Between
R H TOMLINSSONS (TROWBRIDGE) LIMITEDAppellant
Computer Aided Transcript of the Palantype Notes ofSmith Bernal Reporting Limited190 Fleet Street London EC4A 2AGTel: 020 7421 4040 Fax: 020 7831 8838(Official Shorthand Writers to the Court)
The Appellant Defendant Mr Rothschild appeared in person. for in person for The Respondent Claimant did not appear and was not represented.
J U D G M E N T(As Approved by the Court)Date 2003-01-24

Crown Copyright

[1]This is an application by Mr Rothschild for permission to appeal, perhaps out of time, against orders made by His Honour Judge Darlow in the Bath County Court: first, that Mr Rothschild's application for the judge to recuse himself be refused; secondly, that Mr Rothschild's application to have an injunction of 12th February 2002 set aside also be refused. I am not troubled about extending time, but both those orders now seem to me to have become part of the history and an appeal against them to have become wholly academic.[2]The background, very briefly, is this. The claimant, Marshall Properties Limited, sought injunctions without notice to the defendants, Mr Rothschild being the second defendant and the company of which he is, I think, a director being the third defendant. Those injunctions were that the defendants remove a large goods lorry from a level crossing immediately and that they be restrained from obstructing the right of way the claimant claimed over that level crossing.[3]The matter was brought to the court because there was an unfortunate incident (about which least said, soonest mended, I suspect) where Mr Rothschild and the gentleman associated with the claimant company had an altercation of an unseemly character. In the result, the injunction was granted and was eventually served, not personally, but in a way the judge was satisfied had come to Mr Rothschild's notice. It was endorsed with a penal notice and that too was served upon him. But the obstruction was not removed and that led to proceedings being taken for the committal of Mr Rothschild.[4]That committal came before Judge Darlow on 10th June 2002. The case having been opened by counsel for the claimants, the judge, very properly, told Mr Rothschild that he was entitled to ask to be legally represented. Mr Rothschild was happy to proceed and the judge invited him, again properly, to set out his case, preferably by giving evidence so that he might be cross-examined. Then, perhaps unusually, it was the judge who asked all of the questions, particularly about the ownership of the lorry in question.[5]After several pages as recorded in the transcript, the judge indicated that he would not call on counsel for the claimants to ask any questions. There was then this exchange (at p.18 of the transcript of 10th June 2002):
“JUDGE DARLOW: I'm going to put this matter off until Wednesday morning, Bath County Court first thing. If that lorry is still on the land, bring your overnight bag with you. All right? If it's gone, then we'll talk about the costs. Am I making myself clear? MR ROTHSCHILD:Well, as I say, again I'm on oath, and I'll take, the vehicle is not under my control. JUDGE DARLOW: I'm telling you if that vehicle is still there on Wednesday morning, bring your overnight bag with you. MR ROTHSCHILD:Right, that's fine.”
MR ROTHSCHILD:Right, that's fine.”[6]So two days later the matter resumed before Judge Darlow. The judge asked whether the lorry had gone. He was told by Mr Rothschild that it had not. The judge asked what he then had to say. Mr Rothschild indicated that he wished to make an application for the judge to recuse himself because he did not think the judge should be hearing the case. He made two complaints. One, to which I will return, was that he had been unable to put forward his case, the judge treating him as guilty. His other ground for applying for recusal was based upon the judge's personal knowledge of the right of way in question - knowledge gained from walking his dog along that right of way.[7]The judge refused to recuse himself on that ground. I can see no reason why he should have done so. As my Lord pointed out in the course of argument, had he been shown photographs he would have been in no different position. Indeed, had he sought a view there and then and gone to the place, he would have been able to walk past the lorry, or not walk past the lorry, with exactly the same effect as when taking his dog for a walk. I can see no prospect of appealing against that refusal of the judge to recuse himself and I would dismiss that application.[8]Mr Rothschild then said that he had another application to make. His second application was that the injunction should be discharged because it had not been established that he was the owner of the vehicle causing the obstruction. There was then an exchange between Mr Rothschild and the judge which ended with the judge telling him to state his case (p.6 of the transcript of 12th June): “JUDGE DARLOW: Mr Rothschild, you must call what evidence you feel you ought to in support of your application.” [My emphasis added] Mr Rothschild did so and called Mr Victor Willis, who sought to explain that he had acquired the vehicle in question. He said it was his vehicle and he had not moved it. Indeed, he did not think he could move it within a fortnight or thereabouts.[9]This evidence concluded (at page 12 of the transcript) by

the judge saying to Mr Rothschild:

“This is your opportunity, Mr Rothschild, to say anything by way of closing remark you wish to say to me.”
Mr Rothschild then went into a lengthy explanation, much of it, as I read it, totally irrelevant and not all of it doing any credit to the man who appears before us this afternoon and makes his submissions in a coherent, reasonable and logical way. In a later passage recorded in the transcript he calls himself a “maverick”, which seems somewhat out of place when applied to the man who appears here this afternoon. But the explanation ended with his saying, “That is my case, sir.”[10]The judge then immediately gave judgment. That judgment was, however, as the first paragraph indicates, for this purpose:
“This is the resumed hearing from Monday 10th June 2002 of an application by the Claimants to commit the Second Defendant, both in his personal capacity and as the director of R H Tomlinssons (Trowbridge) Limited, the Third Defendants, for breach of an injunction.”
The judge then dealt with the history that led to the injunction, the difficulties in effecting service of it and the evidence given by Mr Rothschild and his witness denying responsibility for the breach.

The judge said at paragraph 15 of his judgment:

“I found it very hard to believe anything Mr Rothschild told me, quite apart from being unable or unwilling to commit himself to anything other than an accommodation address as it seems did his witness.”
So the judge found that Mr Rothschild was sufficiently in control both of the land and of the vehicle for him to be in contempt.[12]His conclusion was:
“18.I find, therefore - and Mr Rothschild complains, `Well, what about the First Defendant?' I am simply here to decide whether a case is or is not established against Mr Rothschild in both his personal capacity and/or his capacity as director of the Third Defendant - that it is clear that he was ordered to remove the vehicle that he was instrumental in placing on that land, from the land. It is clear he knew of the order. It is clear he has failed to do so. As I say, I see the so-called sale as a device and nothing more, to try and thwart the obvious intention of the court in making that order. 19.I therefore make the order sought, and the appropriate warrant will issue.”
[13]Then this was said: “JUDGE DARLOW: The consequence of that is, Mr Rothschild, that a bailiff will have to be brought over from Bristol. In the meantime, there is a room in the bailiff's office where you are required to wait pending his arrival. MR ROTHSCHILD: Right you are. I have not put forward the rest of my case yet, have I? JUDGE DARLOW: On what? MR ROTHSCHILD: Well, with reference to Monday. The barrister put forward their case. You questioned me, but I have not put forward my case yet. JUDGE DARLOW: You have been given every opportunity to put forward your case, Mr Rothschild. MR ROTHSCHILD: I tried to put forward my case on Monday, in which you refused to do anything but question me and said that I could not say anything else to you or put forward any case. JUDGE DARLOW: That is why in conclusion of the evidence today I gave you the opportunity, and you addressed me at some length. MR ROTHSCHILD:With reference to a totally separate matter which was setting the application aside. JUDGE DARLOW: No. But what else, in which case, what else is it you wish to say to me? Mr Rothschild then entered into a longer diatribe (which is a not inaccurate description of what he was then saying, for it was in that passage that he referred to himself as a maverick).

The judge, at the end of those several pages, then came to this conclusion:

“The order I made earlier stands. Do any other applications follow? COUNSEL: Your Honour, the term of the order. You have not said what that is to be. JUDGE DARLOW:It is a term which can be mitigated by a contemnor purging his contempt, is that not correct. COUNSEL: Your Honour, yes. JUDGE DARLOW:Yes. In the first instance, it is one or three months. I make it plain it is open to you, Mr Rothschild, to apply to the court, in this court, to purge your contempt. If in any shape or form you feel that the proceedings have been unjust you must seek what remedies you wish, but in the meantime I have got to ask you not to leave the court, the court building.”
[15]So Mr Rothschild was committed. The actual committal order, perfectly properly drawn, recites that he was found to have been in breach both in failing to remove the vehicle and in continuing to cause an obstruction, and it was recorded that he was sentenced to three months' imprisonment for each of those breaches to run concurrently.[16]To continue the history of this unfortunate matter, two days later counsel or a solicitor appeared on Mr Rothschild's behalf to purge his contempt and, without any difficulty at all, the judge acceded to that request and ordered his immediate release.[17]As to the application to appeal against the order made refusing to set the injunction aside, that is wholly academic because the case has now been heard. In December it was finally disposed of and some injunction was made. Mr Rothschild indicates that he has appealed or is hoping to appeal against that order. The Court of Appeal will consider that on another occasion. The application to appeal against the interim refusal to discharge the injunction is one without any prospects of success and I would dismiss it.[18]I turn, therefore, to what is at the real heart of this matter: the sentence of imprisonment imposed upon Mr Rothschild. He complains that the judge was wrong to find that he was in control of the vehicle. His appeal against that is one which has no prospect of success because the judge heard the witnesses and simply did not believe the truth of what they were saying. It is impossible for this court to interfere with a finding of fact of that kind because the judge has a unique opportunity to judge the witnesses and it cannot be said that he was plainly wrong to have decided as he did. So I can see no ground whatever for upsetting a finding that Mr Rothschild was in breach of the injunction, as was found against him.[19]The unsatisfactory features of this case which have caused me concern are, however, these. On 10th June the judge indicated, as I have read, that he would not wish further evidence and he made the observation, which was a proper one, that he would stand the case over for two days for a chance to be afforded for the lorry to be removed. I have no complaint whatever about that suggestion, and it is perhaps a pity that the lorry was not immediately moved. Where I think the judge was unwise was to tell the respondent to bring his overnight bag, making it quite plain that if the vehicle was still there on Wednesday morning the overnight bag would be necessary.[20]That formed the basis of part of the application for the judge to recuse himself. I have already indicated that Mr Rothschild immediately raised that as one ground for the judge withdrawing. Mr Rothschild said (at p.2 of the transcript):
“You then run the case on behalf of the prosecution even making out that I was supposed to be guilty, even though I'm here as an innocent man until proven guilty.”
[21]If we turn to p.13 of the transcript we find the matter repeated, with Mr Rothschild saying:
“Plus also, when we were in Bristol Court on Monday, I was told to pack my bags quite clearly. Why? I don't know, because I'd been found guilty on that day, and if I had been found guilty on that day then how, under what circumstances was I guilty on that day?”
[22]We find the theme returned to when judgment had been given, at page 19 of that transcript. Mr Rothschild was saying that the judge was thinking of sending him to prison, but what about the daughter he had to look after? The judge said this:
“I asked you to make arrangements on Monday, that on the basis of the evidence you had given me, that I made it quite plain, that you were at very real risk. MR ROTHSCHILD: You said to me to pack my overnight bag, sir. JUDGE DARLOW:What did you understand that to mean? MR ROTHSCHILD: That you would make an order [inaudible] the fact that the lorry was not moved that I would remain in jail until such time as it was moved. JUDGE DARLOW:Thank you. ...”
[23]In that exchange the judge reveals the very reason why it was unwise for him to have expressed himself as he did. He was making it plain, unfortunately, that he had made up his mind to send Mr Rothschild to prison if the lorry was not moved, but before the case had been fully heard. That is not the way to behave when dealing with committal in a quasi-criminal matter.[24]Then the embarrassment is compounded by the judge, having found the breaches proved, going straight on to say, without giving an opportunity for anything to be said as to the penalty that was to be imposed, that the appropriate warrant would issue and Mr Rothschild had to wait in the bailiff's room. That too was procedurally incorrect. Mr Rothschild, not being a lawyer and appearing in person, was perfectly right to protest, “I have not put forward the rest of my case yet, have I?” There too the judge was in error.[25]Next, it is plain from the judge's exchange with counsel that he had not correctly named the breach which he found proved, but he imposed a sentence of imprisonment indicating what period of time should be served for that breach and was not totally clear as to the proper procedure to adopt. That is why he sought confirmation that a contemnor could purge his contempt and sought help from counsel in that regard.[26]It seems to me apparent that the judge's primary purpose, which was a laudable one, was to use these committal proceedings in order to ensure that the injunction order was complied with. He had the opportunity to do that by imposing a suspended sentence. For my part, I would have thought that the sentence of three months was inappropriate for a breach which was the first breach of an order not tested by the court because no opportunity had been given to the applicant to have it looked at by the court on its merits. There was no return date for the injunction. There was no indication that application had been made. The procedure there was totally wrong, as the judge himself recognised. It was draconian to impose a sentence of that length immediately. It was certainly, in this case, wrong to impose it without giving the opportunity to suspend its execution. Had that been done, perhaps the vehicle would have been removed.[27]I regret that the judge made a number of procedural errors which render that sentence of imprisonment wholly unsafe. It is now impossible to correct the matter satisfactorily. I would allow the appeal to the extent that, whereas the breaches should remain recorded, no penalty should be imposed in respect of either of them and the sentence of imprisonment should accordingly be quashed.[28]I would allow the appeal to that limited extent.

LORD JUSTICE LAWS:

[29]I agree that this appeal should be allowed to the extent asserted by, and for the reasons given by, my Lord.

Order

appeal allowed to extent set out in judgment.