Phillimore v Surrey County Council [2010] EWCA Civ 61

Case No B2/2009/2626[2010] EWCA Civ 61
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE SLEEMAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 19 th January 2010
Before
LORD JUSTICE JACOBLORD JUSTICE LLOYDLORD JUSTICE STANLEY BURNTON
Between
PHILLIMOREAppellantSURREY COUNTY COUNCILRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Paul Moulder (instructed by Dollman & Pritchard) appeared for Appellant.Mr Jerome Wilcox (instructed by Surrey CC Legal Services) appeared for Respondent.
Judgment
[1]This is an appeal, actually two appeals, from judgments of HHJ Sleeman.[2]On 23 November last year, His Honour had to deal with an application by the defendant, Mark Phillimore, seeking an adjournment of committal proceedings which had been brought against him by Surrey County Council through its trading standards department.[3]The charge for breach of an injunction was serious. An order had been made by HHJ Critchlow, an order by consent, which forbade the defendant from continuing or repeatedly engaging in (1) contravention of section 13 of the Sale of Goods Act 1979 as amended by failing to provide consumers with goods that corresponded with their description; 2) contravention of Section 40 of the Sale of Goods Act 1979, as amended, by selling goods which are not of satisfactory quality; 3) contravention of Section 1 of the Trade Descriptions Act 1968 by applying a false description to goods or supplying goods to which a false trade description has been applied; 4) contravention of section 1 of the Malicious Communications Act 1988 by sending an indecent, offensive or threatening letter or other form of electronic communication to another person which conveyed the message was indecent, grossly offensive or a threat; 5) contravention of section 1 of the Protection from Harassment Act 1997 by pursuing a course of conduct which amounts to harassment of another and which he knows or ought to know amount to harassment to another; 6) contravention of section 4 of the Business Names Act 1985 by failing to provide the details as to the identity specified under the Act; 7) contravention of section 75 of the Road Traffic Act 1975 by selling or offering to supply a vehicle or trailer in an unroadworthy condition; 8) contravention of the duty of care under the law of negligence by failing to supply vehicles that are in safe condition.[4]That was the order to which Mr Phillimore had consented at a time when he was advised legally.[5]The charges were that he had broken that order. Evidence to that effect had been filed. He had been represented by legal advisers, but he disinstructed them shortly before the matter was due to be heard. On 23 November HHJ Sleeman had to deal with an application made by Mr Phillimore, seeking an adjournment of the case. He did not make the application in person. He sent a letter, which was faxed along with a letter of a Dr Peter Hanrath, one of the doctors in the practice which Mr Phillimore attended.[6]The learned judge considered the very short letter from Dr Hanrath. He said no more than this:
“This patient of mine came to see me today with poorly controlled diabetes and in a mentally exhausted state. I believe he is not fit to represent himself in court on Monday 23rd November 2009 in this state.”
As the judge noted, it did not say that he was not fit to attend court. The judge took a rather dim view of the level of detail he had been given.[7]As against that letter, the judge had other material suggesting the defendant was in fact fit to attend court. He began first with a general history of the case, through which he had been taken by Mr Wilcox. It showed the defendant failed to attend on any occasion. It showed that HHJ Reid QC had considered an earlier fax at a hearing on 12 November and refused an application for an adjournment then. There was never any satisfactory reason as to why lawyers had been disinstructed, although there had been some suggestion that it was through lack of funds. It was not a reason advanced before the judge, and it is somewhat odd that Mr Phillimore has since been able to obtain legal representation if indeed what he said was true then.[8]But the judge went on to consider other evidence suggesting that Mr Phillimore was fit to attend. First he had the evidence of a process server, saying he had met someone at the premises where Mr Phillimore conducted his business and was told that he would be returning that day or the following morning. That suggested to the judge that he was fit to go to work and expected to be fit to go to work. Then he looked at another statement which showed that Mr Phillimore had been at his place of work on 19 November and was fit for work on that day.[9]The question we have to ask ourselves is whether that decision to refuse an adjournment was, as a case management decision, one which no judge could reasonably reach. Was it perverse? To my mind the answer is obviously not. An inadequate medical statement, a history of avoiding any court hearing which might result in a decision adverse to Mr Phillimore, but also a history of him turning up when he was applying for some matters such as setting aside a judgment which had been obtained against him, were important matters for the judge to consider. He heard evidence that Mr Phillimore was at his place of work the week before and was expected to be there. Given all those matters, the judge to my mind not only was not acting perversely, he was acting sensibly, as one would expect. Accordingly I would dismiss the appeal as it relates to what happened on 23 November by way of refusing an adjournment.[10]What happened thereafter is the judge proceeded to hear the trial which ran over 23-25 November. He gave judgment on 25 November.[11]He concluded, in the absence of Mr Phillimore, that Mr Phillimore had been guilty of breaches of the order as set out. He reminded himself that he had to go to the criminal standard before he could be satisfied that those matters were proved. He went through a number of incidents involving what can only be described as swindling members of the public. He found, at paragraph 40, that the defendant made a forgery. He found the defendant had told a number of lies to a number of different purchasers of cars. I do not believe it is necessary to go further into the details of the judge’s finding. They are to be found, if it ever matters, in his judgment of 25 November.[12]The judge then had to consider sentence. He rightly thought it appropriate that Mr Phillimore should be given an opportunity of making submissions. So he adjourned the question of sentence to 30 November. He decided that Mr Phillimore should be committed to prison for nine months. In making his decision he said this:
“I find that the defendant has been acting dishonestly as a second-hand car dealer. He had deliberately been failing to give his own name and address on business documents. I accept that an address of the place of business was always there, but his name was not there. This was so that customers would find it difficult to pursue him personally by way of legal proceedings when their cars were found to be defective. He has continued to keep giving false descriptions about the vehicles he has sold, as to the mileage, or as to the validity, or extent, of warranties he said he was providing. He has continued to sell cars which he must have known had serious defects.”
[13]The judge had before him a long history of the conduct of Mr Phillimore that had resulted in a series of convictions in the magistrates’ court. He decided on making an order for committal without suspension in the following way:
“In my judgment no final suspended order will stop this defendant from continuing to break the law and the terms of Judge Critchlow’s injunction. I find that a custodial sentence is necessary. There is no mitigation that I can see from the offences themselves. I bear in mind the defendant has some health problems. I find there is no purpose in suspending any sentence of imprisonment because it would not, sadly, dissuade this defendant from continuing the course of trading which he has continued over the last few years. Further, I find that these breaches of HHJ Critchlow’s order are so serious that a non-custodial sentence cannot be justified. Sadly, I see no other way of enforcing the injunction and ensuring, insofar as I can, that Mr Phillimore complies with the terms of HHJ Critchlow’s order.”
[14]We have heard evidence, some of it subsequent to the matters before HHJ Sleeman, as to the medical condition of Mr Phillimore. For my part I find it most unsatisfactory. It consists of a letter from Dr Lisa Johnson of 4 January and a letter from a qualified psychotherapist called Jan Courtney. The reason I find these letters unsatisfactory is because they reveal the fact that Mr Phillimore has lied to his own doctors. For example, in Dr Johnson’s letter she says:
“Mr Phillimore also informed me that he had attempted to attend court on 23 November 2009 but he suffered panic attacks en route and had to stop at Clacket’s Lane service station. He felt too unwell to proceed further so his friend drove him home.”
[15]This is the first time that one has heard about a panic attack en route. There is no corroboration from the unnamed friend, yet Mr Phillimore must have told his counsel, who appeared for him on the sentencing occasion, about this if it had happened and Mr Moulder was not able to tell us that that had happened or that his client had told him it had happened. Moreover the story is inconsistent with the letter seeking the adjournment, which did not indicate that he would attempt to come if it was refused or anything of that sort. It simply said it was too dangerous for him to go to court. If that was so was he trying as the ‘en route’ story suggested? Dr Lisa Johnson also said :
“He also informed me he had suffered a panic attack whilst attending court on 30 November. He describes palpitations and a feeling he could not breathe. He stated this episode had been witnessed by his barrister.”
[16]We asked Mr Moulder about that. First, of course, what Mr Phillimore had said was not true. He had not attended court on 30 November nor had Mr Moulder seen him have his attack. The most that Mr Moulder could tell us was that Mr Phillimore had attended on the 30th at his chambers, had decided not to go to court and Mr Moulder had spoken to him on the phone where he had sounded distressed. That self-same false story was repeated by Jan Courtney, who says Mr Phillimore described subsequent attacks, one of which was at the court with his barrister. There can be no doubt that he was saying to his medical advisors that the attack had happened at court.[17]Jan Courtney also says this in her report “Mr Phillimore reported having symptoms of a panic attack on the way to court on 23 November. He describes feeling dizzy and disoriented, nauseous and very unwell. His breathing and his sight would have been affected and he would have been unable to drive or attend the hearing.” That is a very different way of putting the story that he had tried to go to court by driving had had a panic attack and had to be driven home. One would have told that to the doctor if that was what had happened. It follows that those medical reports are based upon material told to the doctors by Mr Phillimore, but what he told them cannot be relied upon.[18]I would add that that we were told by Mr Wilcox that some evidence had been given before the judge on the trial of liability to the effect that Mr Phillimore had, effectively, feigned a panic attack and a collapse in the course of previous proceedings.[19]Having decided that the judge quite properly continue with the trial, it follows that the judge’s decision that Mr Phillimore was in breach of the injunction cannot be impugned. Nor, to be fair, did Mr Moulder seek to do so. His point was that there should never have been a trial, not that something went wrong at the trial.[20]Turning to the question of sentence, Mr Moulder suggests that the judge, more particularly, should have considered suspending the sentence. There certainly would not have been much point in a fine given that Mr Phillimore has failed to pay a whole number of different judgments against him.[21]So the real question is whether the judge should have suspended the sentence. I see no reason whatever for any suggestion that the judge got it wrong here. The defendant had a track record going back, as far as Surrey County Council are concerned at least, to the year 2004 of dishonestly cheating the public in various ways. He had a track record involving convictions, he had a track record involving several judgments. Nothing seemed to stop him. He had consented to this very order and immediately proceeded to break it in a number of serious ways. Why then was it wrong for the judge to conclude that no final suspended order would stop this defendant? For my part I think it is the only rational thing he could have concluded.[22]I would dismiss both appeals.[23]I should add one other matter. In the course of the hearing Mr Phillimore was present until he left court abruptly. We were told that he had collapsed and that he was going to be taken to hospital. Mr Moulder told us that although he had collapsed he was able to give Mr Moulder instructions to ask for an adjournment so that he could be present in case it was necessary to give any instructions. It is true that we had asked Mr Moulder a number of questions upon which he had taken instructions before the defendant left court.[24]Essentially what we had to deal with was whether HHJ Sleeman had got it wrong on the 23rd. There would have been no need for any instructions to be given about that. We considered carefully whether or not it would be appropriate to adjourn, whether it would be unfair and we came to the clear conclusion that it would not. All the matters in respect of which instructions were asked related to matters subsequent to HHJ Sleeman’s decision to refuse an adjournment. They related essentially to events as recounted by the two doctors in their later evidence. So I for my part saw nothing unfair about continuing with this case and every reason for it to be continued.[25]So both appeals, the appeal on sentence and the appeal on the question of adjournment, should be dismissed.[26]I agree. It seems to me that the judge’s refusal of an adjournment on 23 November was an entirely proper exercise of his discretion. Having come to the conclusion that he did on 25 November after hearing the evidence, it was a sensible and proper course to take to adjourn so that Mr Phillimore could address the question of remedy and sanction. At that stage Mr Phillimore was able to sort himself out sufficiently to instruct solicitors and counsel again. Accordingly he had the benefit of Mr Moulder’s representation on the 30th although not, in the circumstances my Lord has described, of his own attendance on that occasion. It seems to me that the judge was entirely right and certainly well within the area of his discretion to conclude that a suspended sentence would not adequately deal with the numerous breaches of the order that he had found proved and that, as he said, an immediate custodial sentence was the only sensible course to take.[27]The Appellant’s Notice also challenged the term of nine months. As to that, what term I would have chosen if I had been in the judge’s position is not relevant. I would not accept the proposition advanced by Mr Moulder that nine months was manifestly excessive. It may have been on the high side, but equally this was an intransigent and incorrigible trader, and it seems to me that nine months is within the range of legitimate sentences to reflect the seriousness of the breaches.[28]So far as the application Mr Moulder found himself having to make in the course of the hearing this morning, as was pointed out in the course of argument, either the collapse which led to Mr Phillimore having to leave court and be taken to hospital was a product of a genuine panic attack, in which case there would not have been a great deal of point in an adjournment, because he might very well suffer a similar attack at an adjourned hearing, or it was not, in which case it provided no justification for an adjournment. For those reasons and for those given by Jacob LJ I agree that both appeals should be dismissed.[29]I agree. This was a substantial sentence. In my judgment it was well within the range of sentences open to the judge, having regard to the fact that, first, these were repeated breaches of an injunction. Secondly, they must have been deliberate and dishonest breaches of the injunction. Thirdly, the victims were persons who could little afford the losses they suffered as a result of dealing with Mr Phillimore. Fourthly, the breaches were not simply breaches that would lead to financial loss on the part of his victims but could lead to injury or indeed loss of life as, for example, might have occurred when a wheel came off one of the vehicles that he had sold.[30]So far as his health is concerned, I find it significant that, notwithstanding the alleged panic attacks between 20 November when he attended his GP and 4 January, he did not attend on his GP, he did not take any medication but declined medication and even when he saw his GP in January, on 3 or 4 January, that was as a result of his having asked for a letter evidencing his state of health and, as is implicit from the doctor’s letter, the doctor refusing to do so unless Mr Phillimore attended the doctor. He attended the doctor not in order to obtain treatment but at the doctor’s request following the request of Mr Phillimore for some sort of evidence.[31]In those circumstances it seems to me that, notwithstanding that evidence, the sentence of the judge was entirely justified.

Order

Appeals dismissed

Cited in 1 later judgment