Accent Foundation Ltd. v Lee [2007] EWCA Civ 665

Case No B2/2007/1198 & 1199[2007] EWCA Civ 665
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HER HONOUR JUDGE BELCHER)
(DISTRICT JUDGE EDWARDS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 14 June 2007
Before
LADY JUSTICE ARDENLORD JUSTICE DYSONLORD JUSTICE MAURICE KAY
Between
ACCENT FOUNDATION LIMITEDClaimant/LEEDefendant/
(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)
Mr I Pennock (instructed by Messrs Stachiw Bashir Green) appeared for Appellant.Mr S Birks (instructed by Accent Foundation) appeared for Respondent.
Judgment
[1]Section 153A of the Housing Act 1996 as amended gives the court power to make antisocial behaviour injunctions. The question with which we are principally concerned on this appeal is whether a person for whose benefit an antisocial behaviour injunction was obtained can, by inviting the person against whom the order was made, waive the effect of the breach of that order provided nobody else was inconvenienced.[2]I need to summarise the statutory scheme. Section 153A provides that that section applies to conduct which is capable of causing nuisance or annoyance to any other person and directly or indirectly relates to or affects the housing management functions of a relevant landlord. “Relevant landlord” is defined in section 153E(7) as a housing action trust, a local authority within the meaning of the Housing Act 1985 and a registered social landlord. That is an exclusive list of persons. In this case the applicant for the order was a relevant social landlord. The applicant was Accent (“Accent”), the respondent to this appeal.[3]Section 153A(2) provides that the court may, on the application of the relevant landlord, grant an injunction if each of the following two conditions is satisfied. The two conditions are set out in subsections (3) and (4). They are that the person against whom the injunction is sought is engaging, or has engaged or threatens to engage, in conduct to which this section applies. The second condition is that the conduct is capable of causing nuisance or annoyance to any of a specified group of persons, including a person with a right to reside in or occupy housing accommodation owned or managed by the relevant landlord.[4]Subsection (6) of section 153A provides that an antisocial behaviour injunction prohibits the person in respect of whom it is granted from engaging in conduct to which this section applies. Section 153E(2) provides that an injunction may be made for a specified period, or until varied or discharged; and subsection (3) provides that an injunction may be varied or discharged by the court on an application by the person in respect of whom it is made, or the relevant landlord.[5]I must now set out in summary the facts on this particular appeal. Accent owns properties in West Bowling in Bradford, Leeds and those properties include 3 Cloudsdale Avenue and 21 Mitchell Square. The appellant, Mr Lee, is the son of Carol Anne Lee; she is the tenant at 3 Cloudsdale Avenue. Mr Lee’s sister, Miss Paula Kaye, resides at 21 Mitchell Square. On 23 October 2006 there was an incident at the mother’s property during which Mr Lee allegedly assaulted Miss Kaye. Mr Lee was arrested at the property and released on police bail and there were allegedly other incidents involving Mr Lee prior to this date.[6]On about 27 October 2006 Accent applied for an injunction under section 153A of the Housing Act 1996 to prevent Mr Lee from entering the locality where his mother and sister lived and from harassing people in that neighbourhood, including the mother and sister. On 27 October 2006 District Judge Hickinbottom granted Accent’s application against Mr Lee until 27 April 2007. The terms of the order were that Mr Lee was forbidden from using or threatening violence against or being verbally abusive to or causing or threatening to cause a nuisance or annoyance against his mother, his sister or their visitors, or anyone living or visiting or working on Cloudsdale Avenue or Mitchell Square.[7]On 18 December 2006 HHJ Hawkesworth QC issued a further injunction against Mr Lee with power of arrest attached, valid until 18 December 2008. The injunction was on the same terms as the previous order and in addition contained the following: that Mr Lee should not enter certain specified areas, which included Cloudsdale Avenue and Mitchell Square. A plan was attached to the order to show the areas from which Mr Lee was excluded.[8]In March 2007 Mr Lee was arrested and convicted of a common assault on his solicitor. The trial took place on about 31 March 2007 and Mr Lee was convicted but immediately released. In April 2007 it is said that Mr Lee entered his mother’s property and hid under the bed; and he appears to have been arrested for this and placed in police custody. On 5 April Mr Lee appeared before District Judge Lawton, who ordered that Mr Lee be released from custody after admitting the breach of the injunction. District Judge Lawton explained to Mr Lee the consequences of breaching the injunction and that further breaches would not be treated with such leniency.[9]From about 2 May to 4 May Mr Lee stayed at Miss Kaye’s home with her consent. On 11 May 2007 Mr Lee was arrested for an alleged assault on his sister at her home. On 14 May 2007 Mr Lee entered his mother’s home at her invitation and with her consent but was subsequently arrested there for breaching the injunction. He was placed in custody where he remained until 18 May 2007. He then appeared before HHJ Belcher, who found that Mr Lee had breached the injunction on 11 May and 14 May 2007. The judge found expressly that he had been there at the invitation of his mother and sister, respectively. She ordered two penalties of 28 days’ imprisonment against Mr Lee, both suspended but to run concurrently.[10]Late in the evening of 21 May 2007, Mrs Lee invited Mr Lee to come to her home and to spend the evening there, to eat and for his mother to do his washing. Mr Lee was there for some time. The police arrived in the early hours of 22 May and he was arrested. Mr Lee remained in custody until the following day; he then appeared before District Judge Edwards who heard the matter. In a note of that hearing, prepared by Mr Lee’s solicitors, the District Judge held that, having heard Mr Lee give evidence, the judgment of the court was that the District Judge was going to deal with it as was suggested by counsel for Mr Lee, Mr Pennock, and not as by the police officers, that is, that the court was going to accept that Mr Lee had been invited by his mother, that he had had a drink and that he was there for some time before he was arrested. However, the District Judge went on to explain to Mr Lee that the same judge had told him in plain language that if he breached the injunction he would go to prison and that he ignored both that plain warning and had appeared before HHJ Belcher only the previous Friday, and here he was again before the judge admitting a breach of the injunction. In the result, the District Judge activated the suspended prison sentence from HHJ Belcher’s order and imposed a further month’s imprisonment for a further breach.[11]Mr Lee was therefore imprisoned for a total of two months. The order refers to two months, although it is clear from a further note, which has since been sent to us by Mr Lee’s solicitors, that the District Judge had referred to 28 days rather than one calendar month. That was in relation to the further penalty for the breach for which he was being dealt with on that occasion. On 24 May 2007 Mr Lee made an application to purge his contempt, but that was refused by District Judge Edwards and we have not been concerned with that matter.[12]I should add to that summary of the facts that we are told that Mr Lee has no home of his own, that he is aged 32 years and that his sister and his mother both have a problem with alcohol abuse.[13]I now turn to the submissions. I should make it clear at the outset that we are not concerned with an appeal against the terms of the injunction. There was no appeal against the injunction ordered in the first instance by the District Judge and then subsequently by the District Judge but we are concerned simply with the orders of HHJ Belcher and the order of the District Judge of 22 May.[14]Mr Pennock appears for Mr Lee on this occasion and the principal argument that he has advanced is that the breaches that occurred on 11 and 14 May were waived by the mother and sister, respectively, when they invited Mr Lee on to their premises. Mr Pennock relies upon a passage in the White Book which says this:
“A civil contempt can be waived, for if the party for whose benefit an order is made is content that it should not be performed, the Court has generally no interest to interfere (see Roberts v The Albert Bridge Co [1873] LR 8 Chan. 753…, Woodward v Twinaine [184] Sim. 301 and R v Newton [1903] 19 TLR 627, Criminal Contempt).”
That passage appears in the 2007 addition at page 2048. Mr Pennock submits that although the terms of the order refer to persons other than the sister and the mother, in substance the order was for the benefit of the mother and the sister and not for other persons. The order, for instance, of HHJ Hawkesworth QC was expressed to be a prohibition on using violence either to the mother or to the sister, or their visitors, or any tenant, member of the association, or members of a tenant’s household living, visiting or working on Cloudsdale Avenue, West Bowling, or Mitchell Square, Bradford.[15]Mr Pennock has relied upon an argument based on substance over form and emphasised that the breaches in this case only affected the mother and the sister. He further submits that in fact there was an abuse of process by both the mother and the sister, and he additionally relies upon the fact that on his client’s case and on his client’s evidence before the District Judge, the mother, having invited him into her house, immediately rang up the police and told the police that he was going to come to her house and would in effect therefore be breaching the order made against him.[16]Those, in substance, are the arguments which have been advanced by Mr Pennock. Mr Birks, who appears for Accent, essentially accepts that a contempt of court can be waived in so far as the authorities allow, but he relies on the fact, of course, that there were other tenants involved in the order in this case and he has referred us to the evidence of Miss Jacqueline Karpow which was before the court which made the injunction. It is a statement dated 8 November 2006. Miss Karpow lives at 4 Cloudsdale Avenue, which is above 3 Cloudsdale Avenue. I need not go through this statement in detail, but she does refer to a number of incidents involving Mr Lee and certainly Mrs Lee and she says at paragraphs 13 and 14:
“13. Each incident leaves me very shaken, with my stomach turning, sometimes I think Anthony is going to kill Carol or Paula because of the screams I can hear coming from them. “14. I am worried for my safety. I have seen Anthony being abusive and threatening towards other people around here.”
[17]I come to my conclusions. I accept that there are occasions when a party may waive the breach of an order, as stated in the passage in the White Book, but as I see it that is only a general proposition; there must inevitably be circumstances in which the court is not prepared to accept that the consent of a person for whose benefit an order was obtained is sufficient to prevent enforcement of the order. This may be so where public policy requires the enforcement of the order, or where the order in fact benefits another person who may not be mentioned at all in the order, such as a child.[18]There may be people for whom an injunction is made who are entitled to its benefit and it may not, therefore, be possible for a party simply to say that he or she in effect waives a breach. In any event, the consent which is relied on in this case was not the consent of the party who obtained the order. The party who obtained the order was Accent. It did so in exercise of its management functions, which is one of the purposes for which section 153A was enacted. I would not exclude the possibility that it is possible to have orders in another context which are severable, so that on some occasions an effective breach could be waived by a person for whom it is obtained, but I am not prepared to make that assumption in this case, nor do I think that it would be very likely that such a consent given by a person for whose benefit the order was obtained could exclude action by a party who had obtained the order.[19]It is important to be clear that no person can under the statutory scheme agree to vary the[20]So far as the further argument as to abuse of process is concerned, in my judgment that leads to no different answer here. Essentially, the same facts are relied upon as on the waiver argument and therefore I agree with Mr Birks and my Lord, Lord Justice Maurice Kay, who made this point in the course of argument that the abuse of process argument likewise leads to no different conclusion from the question whether there was a breach.[21]I now turn to an alternative basis on which Mr Pennock put the case, namely that the fact that Mr Lee was invited to his mother and his sister’s house on each of the occasions with which we are concerned was a matter which should have been taken into account by the judge and by the District Judge and should not, on the second occasion, have resulted in an immediate custodial sentence. I should say that HHJ Belcher clearly took this matter into account before deciding on the appropriate sanction which she imposed of 28 days’ suspended sentence and so, as I see it, this argument can only be raised in respect of the District Judge’s judgment.[22]There is one point which I must clear out of the way. Mr Pennock informs us that the argument which he put to the District Judge and the evidence which was led was not simply that there was an invitation by the mother, but also that the mother had immediately gone and telephoned the police and so, as he put it, this was a “set up” that the mother had designed all along that the son should be arrested because he had breached the injunction and that was irrespective of anything he had done at the house on the occasion in question. I have no doubt that what counsel tells me is correct, but the District Judge did not make his decision on the basis of accepting that evidence; he accepted of course that Mr Lee had been invited by the mother but did not accept, in terms that appear from the note, that the mother had immediately telephoned the police. In those circumstances, in my judgment we must proceed on the basis of the note that has been prepared by the solicitors that that accurately represents the extent to which the District Judge was prepared to accept what Mr Lee had told him.[23]Now it is said that the District Judge should have taken into account that there had been this invitation when deciding what was the appropriate sanction for the further breach of the order and in deciding whether to activate the suspended sentences. It can be said that the respondent had taken no action to prevent the mother or sister from issuing invitations and that the District Judge should therefore have said, “Well, if you do this again there may be custodial consequences, but on this occasion there should be no order”. As to that, in my judgment the District Judge would have to be shown to have made an error of principle in providing that there should be 28 days for the further breach. The District Judge gave a short but reasoned judgment, making it clear that the appellant had been warned in plain language on a previous occasion and making the point that the breaches had occurred at a very short space in time after those dealt with by HHJ Belcher. In those circumstances those matters must have been present, in my judgment, when the District Judge decided to grant 28 days. Therefore, for my part, I do not think on the facts of this case that there was a failure by the District Judge to take into account the circumstances when coming to fix the sentence or that there was an error which would entitle this court to intervene on this point.[24]On the other hand, ground 5 of the Notice of Appeal does raise a point with which we should, in my judgment, deal. The District Judge, as I have explained, made an order for 28 days’ imprisonment in respect of the further breach on 21 May. The order provides for one calendar month and indeed provides for one calendar month for the activated suspended sentence. Those orders were incorrect; they should in each case have provided for 28 days and 28 days alone. Accordingly, I would allow the appeal to the extent only of varying the orders, but in principle I would dismiss the appeal on all the other grounds.[25]I would like to conclude by making two points. Firstly, the appellant must realise that orders of the court have to be obeyed and must remember that he has been told more than once that the mere fact that he is invited by his mother or sister on to their premises does not stop him breaching the order and that the court will deal with him in the light of this knowledge. I would also say this: the mother and the sister are not of course represented before the court and one would want to hear precisely what they would say, but there must be some risk if they, knowing of the order, were to invite Mr Lee on to their premises and I hope they will be told that they should consider their position carefully. I obviously reach no conclusion about the mother or the sister.[26]Accordingly, I would dismiss the appeal save in respect of the one matter which I have mentioned.[27]I agree.[28]I also agree and add simply this: lest anyone should wonder why we, the Court of Appeal, are determining an appeal against an order of a District Judge rather than the appeal being considered locally by a circuit judge in Bradford, the reason is that two days ago the District Judge made an order transferring that part of the appeal to this court pursuant to CPR 52.14, presumably for the compelling reason that we are seized of the appeal against the earlier order of the Circuit Judge.

order

that power is vested in the court. What we are talking about here is whether or not the statutory consequences could be waived. The conclusion to which I come is that it was not open to the mother and sister to waive the breaches. The party who obtained the order, Accent, was still entitled to obtain the order and I bear in mind in reaching that conclusion that this order was obtained not simply for the benefit of the mother and sister but also for the benefit of neighbours, that there was evidence supporting that they were affected by the conduct of Mr Lee on his mother’s and his sister’s premises, for instance as contained in the statement of Miss Karpow to which I have referred and also in a victim report prepared by the police which refers to some 67 incidents. Before Mr Lee reached the property he would be bound to pass other people’s properties and what he said or did on the premises could easily affect neighbours if they heard what was going on and were frightened by it, as Miss Karpow was on a previous occasion. Accordingly, in my judgment, an argument based on a waiver must fail and therefore HHJ Belcher and the District Judge were right to reject the argument that merely because the mother and the sister had invited Mr Lee on to their premises there was no breach of the order. Order: Appeal dismissed in Part.