De Grey & Anor v Ford & Anor [2005] EWCA Civ 1223

B2/2005/2045 (A)Case No B2/2005/2045[2005] EWCA Civ 1223
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE HARRIS)
Venue Royal Courts of JusticeDate Friday, 30 September 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SEDLEY
LORD JUSTICE RIX
LORD JUSTICE JONATHAN PARKER
Between
SPENCER DE GREYRespondentAMANDA DE GREYRespondent-v-
Between
DANIEL FORDAppellantLUIBOV FORDAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellants appeared in person for in personMR E ROBB (instructed by Grundberg Mocatta Rakison of London) appeared for Respondents
J U D G M E N T

LORD JUSTICE SEDLEY:

[1]Mrs Ford, on behalf of herself and her husband, has asked for an adjournment of a matter before the court, which is an application by way of appeal against committal for contempt which is due to take effect on 6 October.[2]We refuse the application for an adjournment essentially for these reasons. First, although, as we are told by Mrs Ford, the Bar Council has been asked to provide pro bono representation, there is no right to such representation and no timetable by which it is possible to gauge the duration of such an application. Mrs Ford tells us that the transcript of Judge Harris's judgment reached her at midday yesterday. It is a judgment of only a few widely spaced pages. She and her husband were present at the delivery of it, so the time that has elapsed since yesterday is not really the test of whether she has had proper opportunity to consider her position and the possible grounds. We consider that there has been entirely adequate notice, both orally and in writing, of Judge Harris's reasons for his decision.[3]Mrs Ford has produced a medical certificate indicating that she has been unwell and is still suffering, she says, from what is described as a flu-like illness which, together with sinusitis, in the doctor's opinion, makes her unfit currently to work. We accept that certificate. Equally, it is clear that although she is not feeling well, Mrs Ford is quite able to present her case. As often happens, she will have to cope, albeit not feeling at her best, with the task before her.[4]Lastly she says that she has an application pending before this court (it is not before the court today) for a new trial. Even if one makes every possible assumption in favour of such an application, it could not alter the fact that there has been found to be a breach of the extant possession order. That is the matter before this court and it cannot, in law, be cured or answered by any such application as, we are told, is pending. An application stands before us today. It is important that we should hear it in Mr and Mrs Ford's own interests because it is they who face the loss of their liberty unless it is cured in the way they want by withdrawal of the committal. Failing that, it will be in the way the claimants seek, by their committal. We will proceed to hear the case. (Arguments to court)

LORD JUSTICE RIX: This is an appeal as of right by Mr and Mrs Ford against the order of His Honour Judge Harris of 25 September 2005, following a hearing on 2 September whereby he made an order committing Mr and Mrs Ford to prison for 28 days but suspending the effect of that order until 6 October 2005 which, as of today, is still a week hence.

[6]The committal order arose out of possession proceedings brought by Mr and Mrs De Grey who are the owners of what had been a disputed piece of land at 2A Turret Grove, London SW4. The Fords live in a building known as the Coach House at 58 North Street, which abuts on to 2A Turret Grove. The De Greys' complaint was that the Coach House, by an extension, intruded upon their land at 2A Turret Grove and that the Fords also had spread themselves into the rest of the land at 2A Turret Grove and used it as a garden or a place to store their possessions.[7]The possession order of 23 August 2004 followed a four- day trial. The possession order stated that the Fords should deliver up possession of premises known as 2A Turret Grove, including the extension to the Coach House situated thereon, and should do so by 4 pm on 6 September 2004. Possession was not delivered up by that time and date. Therefore on 23 September 2004 the De Greys obtained a warrant for possession. In the meantime, the Fords made application to this court for permission to appeal against the possession order. On 30 November 2004 Lord Justice Mummery refused permission, and that was the end of those possession proceedings, subject to their enforcement.[8]On 3 December 2004 the bailiffs attended at 2A Turret Grove (which I shall refer to hereafter as "the property"), but were frustrated in their attempt to gain possession by Mr and Mrs Ford. When other proceedings arising out of this possession order were before me on 3 May 2005, I had occasion to say this (at paragraph 4 of my judgment [2005] EWCA Civ 592):
"On 3 December 2004 the bailiffs and police attended at the relevant premises to obtain possession in enforcement of Judge Dean's order. However as Mrs Ford confirmed to me this morning, they were seen off by Mr and Mrs Ford who, Mrs Ford submitted, were entitled to use reasonable force to prevent the enforcement of the court's order. I have told Mrs Ford that, in my judgment, they were not entitled to use force, reasonable or otherwise, to prevent the execution of the court's order."
That is what I said to Mrs Ford on that occasion.[9]On 16 December 2004 a fresh order permitting execution of the warrant without an N54 notice was made by Judge Dean. On 13 December 2004 he dealt with the Fords' application to set aside that order. He refused to set it aside. On the following day, 14 December, the bailiffs returned to obtain possession. There was a serious breach of the peace, and both Mr and Mrs Ford were arrested on that occasion and subsequently released. On 15 December Mrs Ford was arrested again but released. I think a charge was brought against her arising out of that second arrest but ultimately it did not proceed. Certainly by 24 December 2004, and perhaps immediately after the Fords', or Mrs Ford's, release from arrest on each occasion, the Fords re-entered the property and, indeed, sought to secure it by putting up gates. In the meantime, on 14 December, the bailiffs had demolished the extension of the Coach House which was on the property in question.[10]On 9 February 2005 Mr Justice Sullivan dealt with an application to move for judicial review against Judge Dean's order of 13 December 2004 refusing to set aside his order of 6 December permitting execution of the warrant without further notice. On 3 May 2005, on the occasion to which I have already referred, I refused the Fords permission to appeal from Mr Justice Sullivan's judgment.[11]In the meantime, either on 28 February 2005 or possibly, as I understand the affidavit evidence before me, on 10 March 2005, a further copy of the original order for possession of 23 August 2004 - this time containing a penal notice - was served on Mr and Mrs Ford. The precise date on which that occurred does not matter because it is not in dispute that that order, with a penal notice now endorsed upon it, was served upon the Fords in the period between the bailiffs obtaining possession of the property, pursuant to the warrant whereby the original order for possession was enforced, and what next occurred on 5 July 2005, which was the De Greys' application to commit the Fords who were still in occupation of the property in defiance of the order against them and the attempts by the bailiffs to remove them.[12]That application for committal came before His Honour Judge Dean, who had heard the original trial for possession and made the original order and who had continued to handle proceedings up to that point on 2 September 2005. But Judge Dean was unwilling on that occasion to hear the application for committal. We do not have a transcript of the proceedings before Judge Dean on 2 September at which he recused himself, but we accept what Mr Edmund Robb (counsel for the De Greys) has told us this morning, that he did so and explained that he did so out of consideration for the Fords, facing the committal application as they were, because of certain findings that he had made, in particular against Mr Ford, as a result of the original trial. Fortunately Judge Harris was able to step into the breach immediately and hear the committal application in place of Judge Dean.[13]Judge Harris heard evidence on behalf of the De Greys concerning the intervening events and the attempts of the De Greys, the bailiffs and the police to remove the Fords from occupation of the property to whose possession they, the De Greys, were entitled under the court's order. The judge fully accepted that evidence and as a result of which it was fully established that the Fords had defied the court's order, both by remaining in occupation and by attempting, both on 3 December and 14 December, to rebuff the bailiffs and police, on the first occasion successfully and on the second occasion unsuccessfully, and also by re-entering into occupation even after those occasions. Indeed the judge recorded that - "At one stage in the argument before me Mrs Ford told me that her husband has no intention of giving up possession of this land."[14]The judge asked himself in these very words "what in these circumstances should I do?" In particular he was, at that stage of the proceedings, concerned as to whether he had power to, or should, make an order for committal if the original order for possession had never contained a penal notice. At that time he seems to have been unaware of the fact of the re-service of the order with the penal notice contained on it. He made it clear in his judgment that he was, as indeed were the De Greys, reluctant to see either Mr or Mrs Ford going to prison. Therefore what he was contemplating at that time was the making of a further injunction in order to make clear to the Fords exactly what they had to do and to give them a further chance to comply with the court's injunction before facing committal. In contemplating such a matter, he said:
" ..... and if I were to do that I would make absolutely clear to the defendants that if they were to breach the terms of that order then they would indeed make themselves liable to imprisonment. The last thing, I am told, that the claimants want to see is either Mr or Mrs Ford going to prison. Nobody would like to see that as an outcome but if they persist in flouting the order of the court then it may be that a judge after me will have no alternative than to do precisely that, however distasteful and distressing that might be. So what I propose doing in relation to the claimants' claim is to grant an injunction, and I shall deal with the terms of that injunction in a moment."
[15]It was soon after that that Mrs Ford made it perfectly clear to the judge that she and her husband had received service of the copy order with a penal notice endorsed on it. She said, as recorded in the transcript:
"Your Honour, we do not contest we have seen penal notice but it is not possible for us to comply with this order. We intend to re-open the case. We do accept a contempt of court order. We intend to re-open the case based on new evidence. But we have seen penal notice. We will be perfectly happy for your Honour to decide upon committal application, your Honour."
This morning, in her submissions to this court, Mrs Ford submits that the word "not" has dropped out from the transcript in the sentence "We do accept a contempt of court order."[16]Be that as it may, and, for the purposes of this judgment, I am prepared to assume that Mrs Ford is correct about that, the judge considered that in the light of the evidence he accepted, and in the light of Mrs Ford's acceptance of knowledge of the penal order, that there was no need for him to make a further order by way of injunction prior to proceeding to a committal order. Nevertheless he maintained the attitude he had expressed in the passage which I have already recited in this judgment of an unwillingness to see either Mr or Mrs Ford go to prison. Therefore when he came to make his committal order, he made it clear that that order was to be suspended for more than a full month until 6 October (yet to come) to give the Fords a last considered chance to put their affairs in order and quit the property from which they had been already removed under the order of the court, but to which they had quite wrongfully and unlawfully, in the light of the court's order, returned.[17]I would consider that to be a merciful order, but one that plainly reflects the concern of the law and the courts in this area of the law only to use an order of committal in support of an order for possession when possession could not otherwise be obtained by means of warrants for possession and the use of bailiffs and such like steps to obtain the outcome of the court's deliberations as to entitlement to possession. The leading authority on the use of committal in order to obtain, as a final resort, possession of property pursuant to an order for possession is contained in the very detailed and comprehensive judgment of Mr Justice Neuberger (as he then was) in Bell v Tuohy [2002] EWCA Civ 423, [2002] 3All ER 975. The judgment of Mr Justice Neuberger was agreed to, for all relevant purposes both by Lord Justice Mantell and Lord Justice Kennedy in that case. The essence of Mr Justice Neuberger's judgment is contained in the following propositions which he summarised at paragraph 59 of that judgment:
"59 Thus, it appears to me that this was one of those exceptional cases where the court was left with little alternative but to commit a defendant to prison simply for the purpose of enabling the court's order to be executed effectively and peacefully. In this connection, we were told that many County Courts do not now encourage or even permit their bailiffs to resort to physical coercion against the people in possession of premises when executing a warrant for possession. If that is right, then it may mean that applications to commit defendants against whom possession orders have been made, and who thwart execution of such orders, will, or already have, become more common. I think it is sensible to take this opportunity to emphasise that, at any rate in my view, the appropriate points to bear in mind in such cases are as follows. First, committal for contempt of court in any such case is a last resort. Secondly, it is generally undesirable that a penal notice should be attached to a possession order, unless there are good and exceptional grounds. Thirdly, the normal way to enforce a possession order is by requesting and obtaining the issue of a warrant for possession. Fourthly, as this case shows, a warrant should be applied for only after the date for possession has gone without the defendant vacating. Fifthly, if the last resort of a contempt application appears necessary, then it is normally more appropriate for the contempt application to be based primarily on the defendant's obstruction of the bailiff when executing the warrant for possession, albeit that in some cases it may be right to rely on the possession order itself. In such a case, it would then be sensible to serve a copy of the order for possession with a penal notice, albeit only once the warrant has not been successfully executed due to the defendant's obstruction. Sixthly, to avoid the risk of wasting costs or unfairness on a defendant, care should be taken to ensure that any committal proceedings comply with the requirements of the rules and the Practice Direction."
[18]Those were the circumstances and the full background in which this committal order came to be made, and from which the Fords appeal.[19]The grounds of appeal cover many aspects. It is contended that the committal orders breach Article 5.1 of the European Convention on Human Rights, that the Fords are doing nothing wrong by continuing to reside in the property as they are simply exercising a perfectly legal intention to possession reflected by the expression that "possession is nine-tenths of the law". It is further contended that the committal order was unreasonable, that the Fords were never truly dispossessed of the property, that the matter is proceeding before the European Court of Human Rights and that therefore the committal order was in breach of that court's jurisdiction; also because new evidence was available which would entitle the Fords to a new trial on the original question of possession which arose - I should have said earlier in this judgment - out of the Fords' claim to have established adverse possession by reason of their alleged occupation over a long period of time.[20]It is contended that in the absence of a new trial there would be a breach of Article 13 of the European Convention.[21]It is also submitted that the De Greys, for their part, were in contempt of court because they had acted beyond the ambit of the order of 23 August 2004 by the demolition of the extension onto the property.[22]Complaint is also made about the breach of property rights guaranteed by Article 8 and Article 1 of the First Protocol of the European Convention. Complaint is also made of a breach of a right to natural justice, fairness and equity.[23]As developed in her submissions to the court this morning, the points to which I think I should draw attention are as follows. First of all, Mrs Ford, by her submissions, has made it perfectly plain that she and her husband have no intention whatsoever of voluntarily leaving occupation of the property. Indeed in answer to a question from the court she explained that it was their ambition to remain on the property at least until August 2006 at which time, she said, the order for possession would lose effect and the Fords would be able to obtain registration of the property in their name by means of starting up a fresh case of adverse possession. I say that only to emphasise the Fords' determination to remain in occupation. I very much hope that the Fords will think again about that matter, but that clearly explains their attitude now in the present and, as it has been clearly shown to be, in the past and, subject to the other submissions made, would seem to me clearly to justify the order for committal made in this case.[24]However that is subject to Mrs Ford's other submissions which I deal with as follows. Secondly, then, she submits that on 2 September 2005 when Judge Dean recused himself from hearing the committal application he had said that he may have made a wrong decision back on 23 August and he seemed to have contemplated the possibility, or at any rate Mrs Ford was contemplating the possibility at that time, of a retrial. Mr Robb tells us that that is a completely mistaken view of anything that was said by Judge Dean on that occasion. Unfortunately we do not have a transcript to resolve what Mr Robb and Mrs Ford have respectively told us. I can contemplate that Judge Dean may have said something about the effect of the situation whatever may be the position in regard to his original judgment. Be that as it may, I think I can deal with Mrs Ford's submissions today irrespective of whatever Judge Dean may have said.[25]The fact of the matter is that there is the order for possession against the Fords following a four-day trial. That is the position. Anything that may happen hereafter - and, speaking personally, I am sceptical that any further application to reopen those proceedings could succeed on the basis of anything put before us by the Fords or said to us today so far as that is concerned - whatever the future may hold, the position is that there has been a full trial and order of the court ordering possession. It is in the light of that that the application for an order for committal has to be considered. In that connection it is said that there is new evidence in the form of re-registrations of Mr Ford as the proprietor of 58 North Street, and in the form of an e.mail which refers to one of the witnesses at trial: on the basis of which it is said that that person was a good friend of the De Greys and that on that basis her evidence should have been discounted. None of that is new material which could, on any basis whatsoever, justify the re-opening of these proceedings for a new trial.[26]In any event, what would first have to happen would be for a further application to the Court of Appeal to be made seeking to re-open the already closed question of an appeal from the order for possession. Even if such an application were to be granted, one would have to go through the stages of an appeal which successfully quashed the existing order and then there would have to be a re-trial; and out of all of that the Fords would have to emerge triumphant on that second occasion. But as it is there is nothing in the new evidence which has been put before us by the Fords for the purposes of today to suggest that there is any prospect whatsoever of any of that happening. It matters not that a witness at the trial was a friend of the De Greys. In any event, I do not read the e.mail in question as referring to friendship other than in perhaps ironic terms as referring to the Fords as friends.[27]Thirdly, Mrs Ford submits that they were never dispossessed, merely imprisoned for 12 hours before they came back into occupation. That, it seems to me, is entirely irrelevant. It is unfortunately the case that the Fords have re-occupied the land which, in law, is not theirs. That is the situation which the De Greys and this court are seeking to deal with in these proceedings. But that does not mean that they are entitled to possession. That does not mean that the order for possession against them is not there firmly in place, and does not mean that they have not been taken off the land by the execution of a warrant in enforcement of that order.[28]Fourthly, reference is made to the European Convention, but there is nothing in these proceedings which suggests to me any indication that that Convention in any of its Articles is of any assistance whatsoever to the Fords. The Fords have had a full trial.[29]This morning Mrs Ford has suggested that there has been a breach of the Convention in that they were not able to obtain legal representation for that trial. I understand that that is a misfortune for litigants in person who have to represent themselves in the absence of legal representation. But that is something that often happens. This matter was not of that great complexity which in the absence of legal representation could affect the fairness of the proceedings. It is plain to us from what we have seen in the papers that the De Greys and their legal representatives have gone out of their way to assist, in the way in which the traditions of the courts of England require, a litigant in person representing himself.[30]In any event, it is plain from Mrs Ford's submissions that she is fully able to represent herself and her husband, and is fully alive to the points which she plainly has at her fingertips.[31]She submits that the order for committal by the court was unfair. I think I have said enough to indicate that the facts upon which the order for committal was based were not really in dispute and that the judge and, indeed, the claimants had leaned over backwards to avoid the need for an order for committal which, in any event, was suspended.[32]Mrs Ford submits that the Fords are victims of injustice in that the De Greys are themselves in contempt by obtaining the demolition of the extension which extended upon their land. In this connection, she points out that in a draft order that had been placed before Judge Dean a declaration for demolition was requested, but that was not in his final order. She seeks to present that as though it was an order not allowing demolition. In my submission, she is wrong to assume that. It is simply that the judge left it to the De Greys to consider for themselves how they would enforce their rightful possession to that property. There is no contempt by the De Greys or any injustice in that respect.[33]As a fall-back submission Mrs Ford submitted that if she or her husband were in contempt they were nevertheless otherwise law abiding citizens. They wished to resolve their grievances. It was a civil offence and they should not be both put in jail, if put in jail at all, at the same time, that that would render their property insecure. She asked that, if they were to be put in jail, they would still have to take care of their pets and it should be done at a time of their own choosing, allowing themselves, as it were, to be handed in.[34]I understand that submission, but, speaking for myself, I am somewhat at a loss to comprehend why it is made in the light of the clear fact that Judge Harris was giving to the Fords a whole further month to consider their position: if necessary, no doubt, to care for their pets but, as he hoped, give up occupation of the property to which they were not entitled. That is an opportunity that I would still urge the Fords to accept.[35]Finally, Mrs Ford submitted that the judge had substituted himself a trial judge in making certain detailed findings as to the basis of the breaches of the order of the court giving rise to a committal. There is nothing that has been put before us which leads me to think that the judge erred in any aspect of his order for committal. But, over and beyond that, it is clear from the basic facts of the situation, as I have sought to express it in this judgment, that Mr and Mrs Ford are in continuing contumelious breach of the court's order such that, under the law expressed in Tuohy, to which I have referred, they are plainly in justifiable peril of being committed to prison for their contempt.[36]Having said all that, Mr and Mrs Ford have a further week until 6 October to reconsider the matter in the light of the judgments of this court.[37]Speaking for myself, I very much hope that they will, after all this time, give the most careful attention to where their actions are leading them. I am sure that Mr and Mrs Ford fully understand the legal position they are in. Whatever they may feel about the misfortune of the way in which the trial against them went, whatever they may feel about grounds for hoping in the future that some new trial may be ordered - and I make my own position clear about that - they perfectly understand, I am sure, that there is against them an order of the court which they are required to obey. They have in the past made it perfectly plain that they are not willing to obey it. I would urge them to give renewed consideration to that order, to put their affairs in order, to yield up the occupation of the property which, as the court has ordered, is not theirs, and by these means, one would hope, put themselves in a position where they can return before Judge Harris to say that they have purged their contempt and to ask him, in the light of those actions, not to carry forward his order for committal any further.[38]In any event, for the reasons I have given, I would dismiss this appeal.

LORD JUSTICE JONATHAN PARKER: I agree. In my judgment, faced with the Fords' continued and resolute defiance of the possession order, the judge was plainly justified in making a committal order, and the suspended order which, in the event, he made was, as my Lord has described it, a merciful one.

[40]In the circumstances, and despite all that Mrs Ford has said to us today, I can, for my part, see no substance whatever in this appeal. As my Lord pointed out, in the course of her submissions to us Mrs Ford confirmed her and her husband's intention to continue in possession of the disputed land with a view to a further assertion in due course of the acquisition of title by adverse possession.[41]If the Fords are, as Mrs Ford suggested, law abiding people, then they should comply with the order for possession without more ado.[42]I would dismiss this appeal.

LORD JUSTICE SEDLEY: I agree with those reasons given. (To appellants) I would like to say something. You have heard the judgments of the court. There are still five clear days in which you can arrange your affairs and withdraw with dignity. If you do that, as my Lord has pointed out, you will be in a position to apply to the county court judge - with what success you cannot predict - to modify his order for committal on the ground that you have, at least in some measure, purged your contempt. I join in the hope that you will do this. Nobody wants you to go to prison, and if, with all the leeway that has been given to you, you do so eventually, it will be by your own choosing. I hope you will not let that happen.

Order

Appeal dismissed with the costs in sum of £5,164.13. Permission to appeal was refused, if a question needs to be certified in case such as this it is declined.