Canty v Canty [2007] EWCA Civ 241

Case No A2/2006/2325[2007] EWCA Civ 241
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR JUDGE WYN WILLIAMS QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 5 th March 2007
Before
LORD JUSTICE CHADWICKLORD JUSTICE LLOYD
Between
CANTYAppellant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in personMR S ROBINS (instructed by Messrs Boyes Turner) appeared for Respondent.
Judgment
[1]Mr Richard Canty appeals against a committal order made against him by HHJ Wyn Williams on 2 October 2006. The judge found that he was in contempt of court, essentially in his refusal and failure to give possession of his property, 1 Raldon Close, Cadoxton, Barry pursuant to an order originally made as long as 29 November 2001 by HHJ Weeks. On 2 October 2006 HHJ Wyn Williams sitting in the Cardiff County Court in Bankruptcy made the committal order, being satisfied that Mr Canty was guilty of contempt of court, on the application of Patrick Boyden, who is the trustee in bankruptcy of Mr Canty’s estate. The judge sentenced him to six months in prison for the contempt, the six months to run from the date of his apprehension. Mr Canty was not present at the hearing because he declined to leave the property. When the possession order was sought to be enforced on 19 April 2006 Mr Canty left the house but only in order to go up onto the roof of the property, where he has remained until very recently, when he came down in order to attend this hearing of his appeal.[2]As I say the possession order was made in 2001 on the application of the trustee in bankruptcy. The bankruptcy order was made on 4 July 2000. It was made on a petition based on a debt of £1144.44, which was a costs order as result of a summary assessment. Mr Canty’s mother was also made bankrupt on a petition for the same debt, they both having been parties to the proceedings and both ordered to pay that amount of costs. Sadly his mother has since died. Mr Canty disputed the validity of the bankruptcy and indeed, as he needed to, had applied to set aside a number of statutory demands that had been served on him. His principal contention was that the petitioning creditor, the other party to the relevant litigation, owed him and his mother a much larger sum; but the fact is that the bankruptcy order was made and it stands despite repeated attempts on Mr Canty’s part to challenge it.[3]The possession order was then made on the application of the trustee in November 2001 on the footing that the house, which is owned by Mr Canty, was the only substantial and realisable asset of the estate, and it was accordingly necessary, unless some other arrangement had been made, for the trustee to obtain possession of it and to be able to sell it; otherwise, there would be in effect no assets in the bankruptcy to discharge the debts and the costs. That, too, Mr Canty resolutely resisted. He sought permission to appeal against the possession order, which was refused by Neuberger J on 31 January 2002. Mr Canty’s ground for challenging the possession order was that it was obtained by a false and, he says, fraudulent witness statement in support made by the trustee in bankruptcy and that was the theme of his attempts to challenge the possession order at that stage and ever since.[4]The possession order was not enforced at first. On 16 June 2004 HHJ Wyn Williams made an order giving the trustee leave to enforce the possession order. Mr Canty sought to appeal against that. Permission to appeal was first refused by Patten J on 11 November 2004 but was then granted by Hart J on 15 December 2004. That appeal on Mr Canty’s part came before Peter Smith J originally in May 2005, and then at a further hearing in the light of Mr Canty, as the judge said, going back on a number of things that he had assured the judge that he would do. The further hearing was on 9 June 2005 when Peter Smith J dismissed Mr Canty’s appeal and made an order for possession in 14 days. Mr Canty sought to appeal against that order and he obtained permission to appeal from Arden LJ on the basis that it was arguable that Peter Smith J had not applied a fair procedure in proceeding immediately on 9 June 2005 to reopen and hear the appeal and to make a possession order. When the matter came before the Court of Appeal substantively on, I think, 8 February 2006, the appeal was dismissed and the court, with Sir Martin Nourse giving the principal judgment, who said that there was no basis for any challenge to the possession order. Thus both the bankruptcy order and the possession order had been considered on appeal and had been affirmed.[5]Mr Canty is not wont to accept orders that are made against him and he still persists in asserting that the possession order was not one that he was required to comply with because it was obtained by what he describes as a fraudulent witness statement.[6]Following the dismissal of the appeal to the Court of Appeal came the attempt by the trustee in bankruptcy to enforce the possession order on 19 April 2006. As I say, although the trustee may have been able to obtain possession of most of the property, he was not able to secure Mr Canty’s removal from the property because he went up onto the roof. In the light of that the trustee in bankruptcy applied to the court on 19 July 2006 for Mr Canty to be committed for his contempt of court. The committal application came first before HHJ Wyn Williams on 14 September 2006. At that stage the judge adjourned the application to see if it was possible by further steps, which had not then been taken or investigated, to enforce the possession order without taking the drastic step of committing Mr Canty to prison or imposing any other sanction for contempt. But on 2 October 2006 the matter came back to HHJ Wyn Williams and he made the committal order that I have mentioned.[7]I should say that on that occasion, although Mr Canty was of course not present because he was still on the roof, he was represented, as I understand it on a pro bono basis, by Mr Hickman of counsel and there was, I should say, no question but that the application was in proper form and had been properly served. It was plain to the judge that Mr Canty would not voluntarily come down from the roof and give possession of the property; he had indeed specifically refused to do so. Mr Hickman was unable to advance any contention to the judge to the effect that Mr Canty was not in contempt of court and indeed it is plain that he was. One of the copies of the judgment of HHJ Wyn Williams of that date which we have is one which has been annotated by Mr Canty, and against the passage in paragraph 8 where the judge records that Mr Hickman was unable to think of any basis in fact or law why Mr Canty was not in contempt of court, Mr Canty’s annotation is that the order for possession, eviction and sale dated 29 November 2001 was obtained by “wicked fraud”. The judge goes on to say:
“He is in contempt because he is in breach of the order for possession which now carries with it a penal order [and I should say has been served in that form] and he is in contempt for the reasons set out in the skeleton argument of counsel for the trustee in relation to various sections of the bankruptcy.”
[8]So the judge, satisfied beyond reasonable doubt that Mr Canty was in contempt of court, and that the proceedings were properly before him, considered what sanction was appropriate. By then the contempt had lasted for five months and 13 days and showed, as the judge said, no sign of abating. He said:
“It is on any view of it a flagrant breach of an order of this court. Ultimately this court has the responsibility of enforcing its own orders however unpleasant that may be and clearly it is unpleasant in the circumstances as they exist in this case but I have reached the clear conclusion that such is the contempt in this case that an order for committal is both proportionate and reasonable and is an order which I am bound in all conscience to make.”
[9]He then addressed the question of what order he should make and he was satisfied that it should be a sentence of six months’ imprisonment. Mr Hickman had suggested that it should be for an unspecified period but the judge, I believe rightly, considered that if he was to sentence Mr Canty to prison at all it would have to be for a specific period. Mr Hickman also referred to the fact that one of the disputes which is current to the litigation relates to orders for costs which were made in favour of Mr Canty and the litigation which proceeded his bankruptcy. It is true that orders for costs were made in his favour and it is also true that those costs have never been quantified. The trustee in bankruptcy has always taken the view that the costs when quantified would be no more than a comparatively small sum compared with that which is to be paid out to the trustee. It is also true that Peter Smith J in part of the appeal process to which I referred earlier thought that the trustees assessments of those costs may well be an under estimate.

The judge goes on at paragraph 17 to say this:

“In this court Mr Hickman has made reference to the costs being valued at over £100,000, which if correct would go very far towards discharging the debt which is now said to be owing. The difficulty is that I have before me not one shred of evidence to that effect. Now obviously it is certain that Mr Hickman is faithfully relaying to me his instructions in this case but I repeat there is not a shred of evidence before me to justify a conclusion on my part that the costs in this case awarded to Mr Canty have a value in excess of £100,000.” 10. He concludes at paragraph 18 by saying this: “In any event as I see it the argument about those costs has been the subject of an exhaustive appeals procedure which has been resolved against Mr Canty. Therefore in deciding whether or not Mr Canty is in contempt of court the existence of a possibility of those costs being realised in my judgment is not a relevant factor. The issue, to repeat, is whether or not Mr Canty is flagrantly refusing to obey an order of the court and on that issue I have made my finding and I now have nothing further to add.”
[10]Mr Canty’s annotation at the end of that transcript records, as is the case, that HHJ Wyn Williams allowed the order for possession to be amended in July 2006. It was to include a penal order which was an appropriate step to take. He goes on:
“Mrs Rita Grace Canty, my loving mother, deceased, and myself were owed £100,000 plus interest a full six years before the illegal bankruptcies were corruptly made in Cardiff on 4 July 2000.”
So that was the basis on which the judge made the committal order against which Mr Canty appeals. And as noted in the annotation that I have read, Mr Canty’s essential ground for appeal was formulated in his words:
“How can I be in contempt of an order obtained by a fraudulent witness statement?”
[11]Mr Canty has addressed us at some length about his grievances concerning the saga of litigation which goes back a very long way which led, among other things, to the order for costs which was the basis of the petition debt. He has addressed us as to the iniquity and unjustified nature of the bankruptcy order and the possession order and the various other proceedings, including a number of Grepe v Loam orders that were made in respect of him.[12]He made a preliminary application in relation to this appeal which was for an order that his trustee in bankruptcy, Mr Boyden, should attend to be cross-examined. Chadwick LJ in advance of the hearing directed that he was not prepared then to make any such order but gave Mr Canty permission to renew his application at this hearing. Mr Canty does renew that application. Mr Boyden made the witness statement in support of the application for the possession order in 2001, which Mr Canty characterises as fraudulent. He therefore wishes to have Mr Boyden cross-examined on this appeal. He did not seek to cross-examine Mr Boyden at the original hearing of the application for possession and, in those circumstances, even on an appeal against the possession order it would be inappropriate and irrelevant to permit Mr Boyden to be cross-examined. At this stage it would be even more inappropriate and irrelevant. The only justification Mr Canty has in seeking such an order is the proposition that the question whether the possession order was rightly made is still open for reconsideration by this court and that, accordingly, the court should look back at the basis on which the possession order was originally made.[13]The possession order, as I say, has in a number of different forms been the subject of several appeals and finally the substantive appeal to the Court of Appeal from the order of Peter Smith J which was dismissed on 8 February 2006. That being so, although Mr Canty is not willing to accept it, the fact is that that is a final order which must be complied with and which it is not even open to this court to revisit at this stage.[14]So the application to cross-examine Mr Boyden is refused and it is an application which I would wish to have recorded as an application that was totally without merit.[15]I should say that Mr Canty opened his submissions on this appeal by taking two preliminary points. One was as to the heading of the proceedings, but that is a point without any substance and turned out to refer to the form of a document issued in the County Court to give him notice of the hearing of the committal application rather than the form of the committal order or of any of the proceedings in this court. His second preliminary objection was to object to the fact that the court consists for the purposes of this appeal of only two Lords Justices. Mr Canty had a reference to a rule in the Rules of the Supreme Court, order 59, which is out of date, having been superseded by the Civil Procedure Rules in 1999. Even at the stage of the Rules of the Supreme Court, as the rule itself said, the normal practice of having a court consisting of three members gave way to legislation. Now the Supreme Court Act 1981, section 54(2), provides that the court is properly constituted even if it only consists of one member and, accordingly, it is undoubtedly properly constituted today with two Lords Justices.[16]I should also say that Mr Canty had applied in advance of the hearing for a stay of the committal order. That was refused on paper and the question does not arise now, on the footing that we will deal substantively with the appeal. I should also say that Chadwick LJ directed that the case be listed today for directions, on the footing that the appeal would follow if the court so directed. We have in practice heard not only Mr Canty’s ancillary applications but also all that is relevant that he has to say in support of the appeal. He wished to address us at greater length about matters which appear to us not to be relevant to the appeal. Accordingly it is appropriate not just to treat this as a hearing for directions but to treat it as the hearing of the substantive appeal.[17]It is plain from what I have said that Mr Canty is in breach of the possession order as well as of his various obligations under the Insolvency Act section 333 and 363 and 312, which are referred to in the judge’s committal order and to which I need make no separate reference. It is plain that this is a wilful and deliberate breach and is maintained on the basis that he believes and contends that the bankruptcy order itself, and more particularly (for the present purposes) the possession order should not have been made, and accordingly are orders which he should not have to comply with. It is therefore a plain case of contempt and it seems to me that the judge cannot be criticised for forming the view that the only appropriate way of dealing with the contempt was by imposing an immediate custodial sanction.[18]Of course the court is always reluctant to send parties to civil litigation, or for that matter anyone, to prison unnecessarily, but in the circumstances of Mr Canty’s intransigence and wilful and deliberate refusal to comply with this order, which he believes is not, or at any rate ought not to be, binding on him despite his failure to challenge it successfully on appeal, there really is no point in any order other than an immediate sentence. It has not been argued otherwise, but it seems to me that a six-month sentence, which in practice would normally leave Mr Canty serving three months before release on licence, is not one which is manifestly excessive.[19]I would therefore dismiss the appeal against the committal order. Given the basis on which it is made, although it is of course an appeal that lies without any requirement of permission, I would record that I regard the appeal as totally without merit.[20]I agree. The appeal is dismissed.

Order

Appeal dismissed.