London Borough of Hillingdon v Vijayatunga [2007] EWCA Civ 730

Case No B2/2006/2640[2007] EWCA Civ 730
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UXBRIDGE COUNTY COURT
(HIS HONOUR JUDGE BIRTLES)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 28 th June 2007
Before
LORD JUSTICE WARDMR JUSTICE BENNETTSIR PETER GIBSON
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HILLINGDONAppellantVIJAYATUNGARespondent
(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 P Engelman (instructed by Messrs Vijay & Co) appeared for Appellant.Mr A Ranatunga (instructed by London Borough of Hillingdon Legal Services) appeared for Respondent.
Judgment
[1]This is an appeal against the order made by HHJ Birtles sitting in the Mayor and City of London County Court, though dealing with a matter which had been proceeding in the Uxbridge County Court. On 5 December, having heard evidence and heard counsel for both parties, he found the defendant to be in contempt of court for breach of paragraphs 1, 2 and 3 of the interim injunction dated 17 May 2006 in respect of numbered paragraphs in the schedule of alleged breaches. He fined her £1,000 and ordered her to pay the costs assessed at £3,500. That interim injunction was granted on the application of the respondent, the Mayor and Burgesses of the London Borough of Hillingdon.[2]Paragraph 1 of the injunction granted by the District Judge was that the defendant be forbidden, whether by herself or by instructing or encouraging any other person, from putting out feed in the communal areas of Cowley House, Cowley Road, Cowley, including the common room, the communal hallways and fire escapes, in order to attract birds and cats. Paragraph 2, that she was forbidden, whether by herself or by instructing or encouraging any other person, from climbing or venturing out onto the common roof at Cowley House. And paragraph 3 forbade her from placing any of her belongings on that common roof.[3]The application to commit her was an application on the face of it in form N244 said to be an application notice, and it duly gave notice that the council intended to apply for an order that the defendant be committed for breach of the injunction dated 17 May. The application is made in these proceedings, and full details of the breach are set out in the schedule of the breach attached hereto because the defendant has on a number of occasions been seen climbing out onto the common room roof, has been seen putting out food for cats and birds on the common room roof and /or fire escapes of Cowley House, and has placed belongings on the common room roof.[4]The form of application indicated that the applicant intended to rely on the attached witness statements or affidavits. In fact, they were all witness statements and not affidavits and seven such statements were tendered. The schedule of breach recited this:
“The Claimant avers that the Defendant is in breach of Paragraphs 1, 2 and 3 of the Injunction Order dated 17th May 2006 in that she has on a number of occasions since service of the Injunction Order been seen climbing out onto the common room roof at Cowley House, been seen putting feed out for cats and birds on the common room roof and/or the fire escapes of Cowley House and has placed her belongings on the common room roof of Cowley House. The dates of the breach are set out below.”
There follow 17 particularised occasions, of which I will read only the first as an example:
“On the evening of 17th May 2006 the Defendant was seen opening the fire escape door of Cowley House and putting food out onto the fire escape to attract stray cats.”
So the dates of the breaches run from 17 May to effectively 30 August.[5]Some of the specified breaches, of which 10 is an example, state only, and I read 10:
“On 21st August 2006 between 18.26 and 18.27 hours the Defendant was seen standing by the fire exit door.”
And there were several others to like effect which on the face of them could not be and eventually were not relied upon by the council as breaches of paragraphs 1, 2 or 3 of the injunction.[6]What then happened is that the parties entered into negotiation about the continuation of those injunctions which the District Judge had ordered to continue until the conclusion of the final hearing. That final hearing was eventually set down for 29 November. There had been negotiations begun by the local authority, offering shortly after the injunction was granted to have the injunction set aside provided that the defendant would accept to sign undertakings along the same lines. That offer was made on 26 May. There was probably silence until 27 November when the defendant, writing to the council to take, as she thought, a commercial view of the litigation, offered to pay some costs, undertook for two years not to feed any birds or animals in communal parts except for the communal garden and not to place belongings on the roof. She asked that the claimant withdraw their application for committal proceedings which were then pending against her. The local authority refused to compromise on those terms and stated plainly in a letter of the same date:
“It is the Council’s intention to proceed with the full hearing on Wednesday and to proceed with the Committal Application. The Council will, however, be in court from 9.30am on Wednesday and would welcome any further discussions on a possible settlement.”
[7]On Wednesday, 29 November the parties duly appeared at the Uxbridge County Court but before District Judge Banks. Counsel for both parties was there and the order made was that there be no order on the injunction application. The defendant was ordered to pay the claimant’s costs, which were assessed at £1,000, the damages part of the claim was adjourned and by paragraph 4 it was ordered that:
“The interim injunction ordered on 23 May 2006 be discharged with immediate effect without prejudice to the committal proceedings due to be heard on 5 December 2006.”
Then the order recited the undertakings which had been given and signed in proper form by the defendant and to much the same effect as the injunction, save that it was agreed that the defendant could position bird feeders on a tree in the communal garden area and feed the birds with commercial wild bird food.[8]The hearing of the committal was transferred to the Mayor’s court because it could not be accommodated at Uxbridge and so came before HHJ Birtles. There was some preliminary discussion about the value of these injunction proceedings and the local authority made it plain that they sought the finding of the court as to whether or not there had been breaches. It may have had significance for them in possession proceedings that were contemplated or pending, and the matter of penalty was a matter counsel, very properly, said was not a matter for the judge and that could vary from making no order to imposing a suspended order or imposing a penalty of a fine.[9]The judge heard a number of witnesses called by the local authority. One of those who had served a witness statement was not called, though the judge read it. It duplicated oral evidence given by Miss Pretty Shar. The defendant herself gave evidence and the judge preferred the evidence given by the local authority. He gave as one of his reasons the fact that there had been earlier breaches and Mr Engelman, who appears today although he did not appear below, observes that that may not be a good reason for finding breaches that occurred thereafter. I agree with the modest criticism, but it adds up to nothing because the judge made it perfectly plain that he found the demeanour of the claimant’s witnesses to be that they were calm, they were not exaggerating, whereas the defendant, a solicitor, was alas found to be an unconvincing witness.[10]There is no appeal against his conclusion therefore that the injunction had been breached on 12 occasions set out in the schedule of breaches. The judge was satisfied that some of the so-called breaches were not in fact breaches of the injunction at all, and he noted that they had not been relied upon by the council in support of the committal proceedings before him.[11]Having been satisfied to the requisite criminal standard of proof, he turned to the penalty. It was his view that there must be some penalty imposed upon the defendant. Firstly, because she had admitted the breaches. Secondly, because it showed persistent and continuous series of breaches which were deliberate and wilful. Thirdly, he said because she is a practising solicitor, and while that does not itself attract a criminal sanction, it was important to demonstrate that, being a practising solicitor, she would know that her actions were in breach of an order of the court which everyone has to obey and which a solicitor, above all, should be expected to obey.[12]He was of the view that there was no sufficient mitigation in this case to make no order, but he said that having looked at the defendant’s financial needs, the appropriate penalty was the fine of £1,000. He had regard to the earnings of which she disclosed and was satisfied that £1,000 was in no way excessive.[13]Mr Engelman appears before us today to take two main points by way of appeal. The first relates to procedural defects and the second relates to the effect of the order of 1 December. As to those procedural defects, he has taken us carefully through the County Court Rules, which still apply to committal, and to the practice direction, and he submits that there are at least these defects in the way the case was presented. Firstly, that the application does not set out fully the terms of the injunction. I do not see that to be a defect. The application clearly recites that committal was sought for breach of the injunction of 17 May, as set out on the schedule of breaches, and that schedule was duly recited that it was being alleged that the defendant was in breach of paragraphs 1, 2 and 3 of the order. The fact that the terms of the order were not recited does not seem to me to be fatal. Clear attention was drawn to the relevant paragraphs of the order which it was alleged had been broken.[14]Secondly, Mr Engelman submits that the schedule did not relate the specific allegations of breach to particular paragraphs in the order. That is correct, but it is a point of total insignificance because anybody reading, on the one hand, the injunction which is perfectly clear and understandable -- do not put feed in the communal area, do not put your belongings on the common room roof, do not go out on the roof -- would be able to understand from an allegation that alleged she was putting out food on the fire escape that the breach was at paragraph 1 of the injunction. When it was suggested she was putting out her washing on the common room roof, it would be plain to everybody that this was said to be a breach of paragraph 3, placing her belongings on the roof. And when she ventured out onto the roof herself it was plain and obvious to everybody that paragraph 2 was the paragraph alleged to be broken. I find absolutely nothing in this argument at all; it is pedantry of the worst kind.[15]Then it is suggested that there was no compliance with the requirement in the rules and in the practice direction for notice to be given to the alleged contemnor that if they did not attend at the hearing of the committal, dire and terrible things would happen to them. That suggested notice is annexed to the practice direction warning the respondent that the court has the power to send that person to prison and to fine and so forth.[16]In the bundle which is presented to this court there is a document which is the index to the supplementary trial bundle presented to the Uxbridge County Court and that index indicates that the first document was the application for committal, the second was the annex to practice direction 52 and the third was a schedule of breaches. We are told by Mr Ranatunga, who appears as he did below for the local authority, that that annex which complies with the practice direction was indeed served with the application and so there was proper compliance with the rules and with the practice direction. Mr Engelman is not in a position to challenge the accuracy of that. I make two further points about it. Firstly, no complaint was made to the judge about any of these defects, any of them at all. They are all the product of Mr Engelman’s industry and ingenuity. Secondly, even if this document had not been served it seems to me to be a breach of a most technical kind because the defendant did duly attend at the hearing and the purpose had therefore been served. But for my part I proceed upon the basis that there was no breach.[17]The fourth breach is a breach of super technicality. The rules require that the application be supported by an affidavit. This application was not so supported because these were witness statements attested to be true by the deponents. Moreover, since the evidence was called I cannot see how this could amount to anything more than the most technical breach.[18]Then it is suggested that the application form was not the correct form. The rule, CPR Order 29, rule 14a, allows for a claim form or an application notice to be used and the practice direction suggests that where committal is being sought in current proceedings before the court it is appropriate to use an application form. As I have already recited, such a form was in fact used to support the application but because Bean J from his book of injunctions in its 9th edition 2007 suggests at paragraph 9.15 that form A78 should be used, Mr Engelman industriously seizes upon this as a further breach saying N78 does not equal N244. So it does not, but with all respect to the author of that work, I guide myself by the rules, which require an application form, and since this was an application form there is no breach in that regard.[19]Then Mr Engelman complains that the schedule recited in some six paragraphs, most of which relate to the defendant being seen standing by the fire exit door, could not have amounted to a breach of any part of the injunction. Well everybody, by the time of the hearing and before the judge, knew that and that is why the council did not rely on those allegations nor did the judge. I cannot see that because a pleading avers something which is later not found to be a breach of the relevant paragraphs of the injunction, there is therefore some fatal defect in the schedule. So I see nothing to that point.[20]I am therefore driven to conclude that the most heinous fault in this case seems to be serving a witness statement and not an affidavit. But we had learned argument from Mr Engelman about the court’s power to dispense with such technical defects. I repeat, no complaint was made at the court below in any of these respects at all, but, as to the power to waive, the practice direction expressly states in paragraph 10:
“The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.”
Mr Engelman valiantly submits, correctly submits, that the practice direction is not made with the power of the authority of Parliament under a statutory instrument, it is of guidance only. So it is, but it is a good guidance, and unless it is shown to be wrong, the court will follow it.[21]Mr Engelman submits that the approach of asking whether the court would be satisfied that no injustice has been caused is not supported by proper authority. He boldly submits that the decision of this court in M v P (Contempt of Court Committal Order) [1993] Fam 167 was decided per incuriam. He did not refer to, but I reminded him of, Nicholls v Nicholls [1997] 1 WLR 314, another decision of this court and he boldly submitted that too was wrongly decided. That would come as some surprise, I suppose, to the members of that court who included not only the Master of the Rolls, Lord Woolf, and Auld LJ, but even myself who had a modest hand in the judgment of the court that was presented, and I read but a few paragraphs from it with all appropriate modesty. Page 326 at E:
“In the future therefore it should not be necessary to revisit the authorities prior to the decision in M v P, Butler and Butler.It should be recognised that Order 59 rule 10 and section 13 (3) of the 1960 Act give the court a discretion which they are required to exercise. To decline to exercise that discretion because of a technical error in the notice of application to commit or the committal order itself, in the absence of any prejudice, is to derogate from that discretion.”
[22]The court in that case sought to give guidance which was as follows, reading from page 327:
“1) As committal order involved the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which are being proved and for which the sentence has been imposed. 2) As long as the contemnor had a fair trial and the order has been made on valid grounds, the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside, except insofar as the interests of justice require this to be done. 3) Interests of justice will not require an order to be set aside when there is no prejudice caused as a result of errors in the application to commit or in the order to commit. Where necessary the order can be amended. 4) When considering whether to set aside the order the court should have regard to the interests of any other party and the need to uphold the reputation of the justice system. 5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so.”
[23]Paragraph 10 of the practice direction reflects that judgment. If I need to recite any passage at all from M v P, it is enough to confine myself to the Master of the Rolls, Lord Donaldson of Lymington, there saying at page 179 that:
“Whilst this court should always be quick to identify and condemn any departure from the proper procedures, the interests of the victim and of maintaining the authority of the courts require that in deciding what use to make of its powers under section 13(3) of the Act of 1960 this court should ask itself whether, notwithstanding such a departure, the contemnor has suffered any injustice. It does not follow that he has, nor does it follow that the proper course is to quash the order. If he has not suffered any injustice the committal order should stand, subject if necessary to variation of the order to take account of any technical or procedural defects.”
Since we were exhorted in Nicholls not to go back beyond M v P, I do not incline to do so and to confine myself to making this observation that in the catalogue of cases to which we have been taken where this court has on previous occasions sometimes refused to overlook the technical irregularity, the courts proceeded on a basis ultimately that justice had to be served.[24]I, for my part, can see no error at all in M v P failing to follow previous authority. Mr Engelman himself is driven to concede that if the technicalities are of small weight and can cause no injustice then the court has the power to waive them. The technicalities here, the only one I am satisfied by the witness statement and not the affidavit, is a technicality of small weight -- featherweight. There is no conceivable injustice suffered by this lady in the hearing in the court below. She had a full and a fair trial and suffered no prejudice from anything that has been put before us by Mr Engelman on her behalf, and that part of her appeal is utterly helpless.[25]So I regret to say is the second main head upon which she seeks to appeal. The argument is that in compromising the injunction proceedings and accepting the undertakings, the judge should have factored that into his judgment in some way. Quite how is a bit of a mystery because, of course, once again no point was taken about this in the court below. To complain, therefore, that the judge does not deal with it is hardly fair on the judge.[26]The point is hopeless because the order of 1 December is abundantly plain as to its meaning. I read at paragraph 4 again:
“The interim injunction ordered on 23 May be discharged with immediate effect without prejudice to the committal proceedings due to be heard on 5 December 2006.”
That order was made with counsel for the defendant in attendance; the same counsel who represented her on the committal proceedings and who took no point about it there, rightly so of course. That order discharged the interim injunction with immediate effect and Mr Engelman has to accept, rightly, that the interim injunction remained in full force and effect up to 29 November. It was not discharged ab initio and he does not contend that it does. How therefore it can be argued that somehow that prevented the applicant continuing with the application to commit for breaches of a valid order is a mystery, and although Mr Engelman protested when I was asking him to explain himself the third time, he was still not lucky. I simply fail to understand his point. There is no argument of any force at all in his submission. It was plain that the council intended to continue with the injunction proceedings and they did so. I am afraid that ground of appeal is, in my judgment, equally hopeless.[27]There is an invitation to this court to review the penalty, but Mr Engelman rightly recognises that is largely a matter for the judge, and so it is. He had evidence of the defendant’s means. He was satisfied that the sum ordered was not excessive and, for my part, I cannot say that he was plainly wrong to reach that conclusion. In the result, in my judgment, the appeal must be dismissed.[28]I entirely agree with the reasons given by my Lord, Lord Justice Ward, that this completely meritless appeal should be dismissed.

Sir Peter Gibson:

[29]I also agree.

Order

Appeal dismissed with costs summarily assessed at £3,210 in VAT payable within three months.

Cited in 1 later judgment