De Grey & Anor v Ford & Anor [2005] EWCA Civ 1791

Case No B2/2005/2885[2005] EWCA Civ 1791
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE KNIGHT QC)
Venue Royal Courts of JusticeDate Thursday, 22 December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
LORD JUSTICE SCOTT BAKER
Between
DE GREY and AnotherRespondent-v-
Between
FORD and AnotherAppellant
(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 person for The Respondents were not represented and did not attend
J U D G M E N T

LORD JUSTICE TUCKEY:

[1]This application for an adjournment on terms that the appellants should be released in order to enable them to obtain legal representation to present this appeal is refused.[2]The history of this matter shows that throughout Mrs Ford has ably represented both herself and her husband out of choice: in an eight-day civil action in the Central London County Court, in numerous applications to this court for permission to appeal and in other matters. It is too late to apply for an adjournment to this court today and the condition upon which she asks for the adjournment is unacceptable to the court in any event. (Argument re appeal)

LORD JUSTICE TUCKEY:

[3]This is an appeal as of right by Mr and Mrs Ford against orders for committal for contempt of court made by His Honour Judge Knight QC in the Central London County Court on 15 and 16 December 2005. Each was sentenced to 42 days' imprisonment.[4]There is a long history to this matter which has already come before this court on a number of occasions. It arises out of a dispute between the appellants and their neighbours, the claimants in the proceedings, over a piece of land at 2A Turret Grove, London SW4. The appellants built onto and occupied the disputed land to which they claimed squatters title at a trial in the Central London County Court which took place over eight days. Judge Dean QC decided that the appellants had no such title. On 23 August 2004 he made an order that the appellants should deliver up possession of the disputed land by 4 pm on 6 September 2004. They did not do so. Instead they applied, first, for permission to appeal to this court. That application, which included an application for a new trial, was refused by Lord Justice Mummery on 30 November 2004 on the grounds that it had no real prospect of success.[5]On 3 December 2004 bailiffs attempted to execute the possession order but were frustrated by the efforts of the appellants. A further attempt was made on 13 December 2004 when the appellants caused a serious breach of the peace and one or other, or both of them, was arrested. Possession was obtained by the bailiffs on that occasion. But the appellants later re-entered the land and secured it for themselves once again. They retained possession while making various applications to the court designed to frustrate the claimants' attempts to regain it.[6]As a last resort, the claimants took proceedings for contempt which came before Judge Harris on 5 September 2005. He found the appellants to be in contempt of Judge Dean's order on six separate grounds, and made a 28-day committal order suspended to take effect after a month unless the appellants had given up possession and had done a number of things - such as removing locks - to demonstrate that they had done so. The order also made clear that having given up possession they should not re-enter.[7]The appellants appealed that decision to this court (consisting of LJJ Sedley, Rix and Parker). The appeal was dismissed on 30 September 2005. Each of the judges urged the appellants to comply with the order for possession which they still had time to do before the suspended committal took effect. They did not do so and the county court directed that the committal order should be executed. That led to the appellants being taken into custody on 28 October and being released from the 28-day sentence after serving half of it on 10 November.[8]What happened next resulted in the committal which is the subject of the present appeal. Within 24 hours of release the appellants re-appeared on the land and carried out various activities, including changing locks and cutting fencing. The claimants had employed contractors to secure the land for them. Mrs Ford attacked them with a high pressure hose. The security contractors had put a shipping container on the land to try and prevent the appellants from re-entering it, but the container was moved by Mr Ford.[9]The judge at the committal hearings heard evidence about all this. His orders recite the following acts which he found to be in contempt of the order for possession.[10]In the case of Mr Ford he found that he had re-entered the land on 11 November 2005; fixed his own locks on the claimants' gates denying them access to the land and had cut down part of the fencing running alongside the property; that since, in or around, 1 December 2005 he had interfered with a container placed on the land by the claimants, by entering on to the land and then putting bricks underneath one side to try to tip the container on to its side; thirdly, that in or around 12 December he had moved the container across the land away from the side of the garage and had left it in front of the gates to the side fronting on to Turret Grove, in such a way that the gates cannot be opened and thereby further denying the claimants access to the land.[11]In the case of Mrs Ford, he found that on 12 November 2005 she had attacked a security contractor and his son (agents of the claimants) who were on the site with a high pressure water hose; that on 10 December 2005 she was seen on the land with her husband and a BT engineer; and on 13 December she had been seen on the land using a shovel to move gravel around it.[12]At the hearings before the judge it does not appear that the appellants denied the allegations made against them as such but they sought to justify what they had done. Indeed, in her submissions to us this morning Mrs Ford has elaborated on this, claiming that all they were doing was removing things which obstructed their light and so on.[13]It is abundantly clear to me, not only from the history of the matter which I have recited but also from the submissions we have heard this morning, that neither appellant has accepted the outcome of the trial before Judge Dean or the possession order which he made; and, in the belief that their non-acceptance of it entitled them to do so, they have deliberately flouted that order ever since it was made.[14]Mrs Ford has represented herself and her husband throughout these proceedings and has addressed us this morning. Her first ground of appeal complains that she and her husband were deprived of legal representation and had insufficient time to prepare for the hearing before Judge Knight. Both were summoned to appear before Judge Knight on 15 December, but Mr Ford did not do so because he said he was required to attend his work, as a result of which a warrant was issued for his attendance. He appeared before Judge Knight on 16 December. Mrs Ford had been committed to prison the day before.[15]The complaint about the failure to provide legal representation is one which would normally receive considerable sympathy in this court. But the history of this matter shows that throughout the proceedings the appellants, for one reason or another, have chosen to represent themselves. Mrs Ford has shown yet again this morning she is well able to look after herself and coped admirably with a number of searching interventions by the court.[16]The judge noted that Mrs Ford had asked for an adjournment to enable herself to be legally represented, and Mr Ford had asked for an adjournment pending the hearing of charges for criminal damage which had been brought against him as a result of the matters for which he has been found in contempt of court. The judge concluded that in the light of the history he could not justify granting an adjournment to enable either appellant to be legally represented. That was an exercise of his discretion. I can see nothing to indicate that he exercised it in a way with which this court could interfere.[17]So far as time for preparation is concerned, it appears from the note of the judgment which we have that both appellants were able to deal with the allegations made against them. As I have said, they did not take issue with the facts alleged but sought to justify them.[18]The next point which Mrs Ford takes is that the judge had no jurisdiction to deal with this matter. She relies on In re G (a child), a decision of the President of the Family Division, Dame Elizabeth Butler Sloss, the short summary of which reads as follows:
"Contempt of court in connection with County Court proceedings which was neither contempt in the face of the court, nor disobedience of an order of the county court, was only punishable by an order of committal made in the Queen's Bench Division."
In that case, in the context of a dispute over custody and contact, the father, who was a member of the Families Need Fathers organisation, had put details of the case on a website. This was said to be a contempt of court. Clearly it was not disobedience of any order made by the court and so it was only "in connection with the proceedings" and therefore not within the jurisdiction of the county court dealing with the care and contact dispute.[19]That is not this case at all. The possession order in question here was made by the county court. Unless it should be misunderstood by Mr and Mrs Ford, the effect of that possession order is not that they only had to do something by a particular day. It did require them to give possession on 6 September 2004, but that did not entitle them, for example, to re-enter the land again on 7 September, having given up possession the day before. That would be a complete nonsense. The effect of an order for possession of this kind is that you give up possession to the person who is entitled to it and you allow them to retain it. If you fail to do that by re-entering you are in breach of that order. It is no more complicated or less commonsensicle than that. What was being alleged against the appellants in the committal proceedings was that they were re-asserting their right to possession of this disputed piece of land when the order had said, and it was intended to give effect to the fact, that they should not be entitled to do that, but that possession should be with the claimants who were entitled to it.[20]The next point taken by Mrs Ford is related to what I have just said because, based on a passage from a book called Injunctions by David Bean QC, as he then was, she submits that this order is the equivalent of a mandatory injunction which required them to do a certain act by a certain date, and in such a case if there is a committal for failure to comply it has been held that it is necessary for the party who alleges a continuing breach to come back and get a further order to ensure compliance by some future date.[21]For the reasons I have already explained, the possession order in this case was not of that nature. It did require the appellants to give up possession by a certain date, but to say that it did not not have the effect of preventing the appellants from re-entering the property the day after they gave up possession is, as I have already said, a nonsense. It cannot possibly have such a limited effect. The fact that a breach of the order had been punished did not mean that further breaches could not be punished unless a further order for possession was made[22]I have already mentioned the submission which Mr Ford made to the judge about adjourning the case pending the hearing of the criminal proceedings against him. His submission comes, in the end, to a submission that by dealing with the contempt proceedings and still having to face the criminal proceedings, he is in double jeopardy. I do not accept that. The civil remedy for breach of the possession order is distinct from any remedy there may be for any criminal offence which Mr Ford may have committed. I have no doubt that if he is convicted and the court is considering penalty it will take into account the fact that for different reasons, but for the same misconduct, the appellant has already served a period of imprisonment.[23]Another point made by Mrs Ford is that the contempt applications should not have proceeded at all because Judge Dean had expressed doubt about his judgment and, so it is alleged, said that he would not like to jail these appellants. This was a point raised at the hearing before this court on 30 September. Dealing with it, Lord Justice Rix said:
"We do not have a transcript of the proceedings before Judge Dean on 2 September [the date on which it was said he made these comments] at which he recused himself. But we accept what Mr Robb counsel for the claimants 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."
In the absence of a transcript, we cannot take it any further than that. Lest it should be thought that this is some killer point that can be used by Mr and Mrs Ford at some later date, I should say that it does not matter what Judge Dean said on this occasion. If he had doubt about his judgment, it has been subjected to the scrutiny of this court which decided there were no grounds for an appeal against it, and a reluctance to hear the committal proceedings himself for whatever reason does not mean that if there was a contempt of his order (as both Judge Harris and Judge Knight found) that contempt is in anyway excused.[24]Throughout her submissions Mrs Ford said that Judge Dean reached the wrong conclusion in this case and there had been an injustice which, she says, entitled the appellants to have the matter retried. She mentioned various routes by which it is hoped that she and her husband may be able to have this matter retried. Nothing I say in this judgment should give either of them any encouragement to believe that they will succeed in doing so. My Lord and I made it clear, however, that we thought there was little or no prospect of that happening.[25]Based on her expectation of a retrial, Mrs Ford submits that to imprison her and her husband would be medieval, heavy-handed and more than justice or fairness demanded. She and her husband were law abiding citizens, and to imprison them for breach of an order of this kind is disproportionate and will achieve nothing.[26]I do not accept those submissions. The appellants lost at trial. Their attempt to appeal the judge's decisions failed. They must accept this result and abide by the court's order, unless and until it is upset. They have quite plainly failed to do so. If they breach the order again they will be in contempt of court and stand to be punished more and more severely for doing so. I think the sentence of only 42 days was merciful, given the history of the matter and the flagrant breaches of the order which they have committed. They cannot expect such leniency in the future. The court has power to impose a sentence of up to two years for contempt and it may feel, if there are further breaches, that a sentence of this order is the way to bring home to the appellants, if it can be, that they must obey the court's order however much they may not like it. For those reasons I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree. The sentence of 42 days in this case was amply justified. The Fords are making it increasingly clear that they will not abide by the court's order; whatever the court decides, they are right, they are above the law.

[28]The consequences of the Fords' behaviour are becoming increasingly burdensome and damaging to the lawful interests of the De Greys. The court cannot stand by and watch its order flouted in this way. There is, in my judgment, nothing wrong with the judge's order. If the Fords are found guilty of any further contempt of court they are very likely to receive a very substantially longer sentence than the one of 42 days in respect of which the present appeal is made.

Order

Application for adjournment refused. Appeal dismissed. Applications for permission to appeal, stay of execution refused.