Dartford Borough Council v Coates [2012] EWCA Civ 1707

Case No B2/2012/2494[2012] EWCA Civ 1707
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE SIMPKISS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 8 th November 2012
Before
LADY JUSTICE HALLETTLORD JUSTICE MCFARLANE
Between
Dartford Borough CouncilRespondentCoatesAppellant
(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 Tim Jones (instructed by The Community Law Partnership) appeared for Appellant.Ms Caroline Bolton (instructed by Sharpe Pritchard) appeared for Respondent.
Judgment
[1]This is an appeal, in which permission to appeal is not required, from an order made by HHJ Simpkiss on 12 September 2012 whereby he ordered Mrs Sarah Coates to be sentenced to 28 days in prison, suspended until 12 October 2012. The suspension of the sentence was on condition she complied with injunctions obtained by the respondent council on 7 July 2011 and varied by order of the court in August 2011 and October 2011.[2]On Tuesday of this week we refused an adjournment requested by Mr Jones on behalf of Mrs Coates because full transcripts were not available of the hearing and the judgment. My Lord and I concluded that it was important to have this matter resolved and that sufficient time had elapsed between the making of the order and this application being heard. This is, after all, an application which relates to the liberty of the subject.[3]HHJ Simpkiss found the appellant to be in contempt of court for breach of an injunction order made by HHJ Hammerton sitting in the Dartford County Court in July 2011. The injunction order prohibits residential occupation of the land known as The Stables, Station Road, Sutton at Hone, Dartford. At the time the injunction was first made it was targeted at a number of named individuals, which did not include Mrs Coates, and "persons unknown". One caravan was permitted on site. Ms Bolton for the local council has provided a description of the land. She described it as being within the Green Belt on a site of potential archaeological interest. The Environment Agency has confirmed to the council for whom she acts that it would probably object to any application for planning permission and the use of the land could cause environmental harm. The appellant concedes that her residential use of the land at present is a breach of planning control but says that she hopes to appeal successfully the refusal of planning permission for change of use.[4]Mrs Coates in fact bought the land from a Mr Gaffney, to whom the original injunction had been specifically addressed. Until she bought the land in May 2012 she had been living in recent years in a caravan at her parents' property. However, she moved on to the land on 12 May 2012 with her children, one of whom is severely disabled. She claimed that she was unaware of the injunction until the local council informed her on 12 May this existed. She accepted she was informed again on the 14th and then again on 18 May 2012. Albeit the original injunction would have applied to her because it was targeted at “persons unknown”, for the avoidance of doubt she was made a party to the litigation soon afterwards.[5]Mrs Coates, when confronted with the injunction, declined to leave, saying she had nowhere else to go. She has stayed in occupation despite the injunction and a hearing on 11 July 2012 at which HHJ Cameron found against her in the clearest possible terms, rejecting inter alia her assertion that she had nowhere else to go. She was refused permission to appeal and sought permission and a stay from the High Court. At the time of the hearing before HHJ Simpkiss and before us the applications remain unresolved, because, as Mr Jones explained, Mrs Coates's solicitors have been having difficulties in extracting from the county court a transcript of the judgment of HHJ Cameron to place before the High Court.[6]Mr Jones acknowledged that the appellant was in breach of the injunction. He also informed us that at the hearing before HHJ Simpkiss no oral evidence was called albeit there were statements from Mrs Coates before him. The hearing began with an application for an adjournment pending Mrs Coates’ attempt to appeal the injunction and to rectify her planning status. HHJ Simpkiss had a very full list and at one stage was concerned about the length of time that the hearing was likely to take. However, having heard submissions from both counsel, he eventually decided not to adjourn and he continued with the hearing, ensuring that other cases in his list were put off to either another court or another day.[7]During the hearing HHJ Simpkiss was confronted with a wide-ranging attack by Mr Jones on the findings made by HHJ Cameron. Mr Jones insisted that they were relevant to the issues before HHJ Simpkiss as to whether or not Mrs Coates was in wilful breach of the[8]Despite what were no doubt powerful submissions by Mr Jones, the judge was satisfied that there was a deliberate breach and he ordered that Mrs Coates was in contempt of court by remaining in residential occupation of the land and he sentenced her to the 28 days suspended to which I have already referred.[9]The law appears to be common ground. A number of provisions of the European Convention on Human Rights are potentially in play here. The members of this court are extraordinarily familiar with them and so I do not need to rehearse them in the course of this short extempore judgment. In particular I have very much in mind the provisions of Article 8 of the Convention and the provisions of the First Protocol of Article 1. Mr Jones was entitled to rely upon the First Protocol of Article 1, because the land in question belongs to Mrs Coates. She is not, he emphasised, and I readily accept (as did HHJ Simpkiss), a trespasser.[10]It is also common ground that the burden of proof was on the council, in an application to commit a defendant to prison for contempt of court, to prove that the appellant was in deliberate breach of an order of the court. The standard of proof to be applied was the criminal standard: the judge had to be satisfied that he was sure that there was a deliberate breach.[11]Mr Jones also invited our attention to the decision in South Bucks DC v Porter [2003] 2 AC 558 in which the court had been confronted with applications for injunctive relief under the planning regime. The House of Lords emphasised that, in deciding whether or not to grant such relief, the court is far from a rubber stamp. In typically wise words, Lord Bingham observed that the court must have regard to all relevant circumstances including the personal circumstances of the person to be made subject of the injunction and that it was essential that that an individual's Convention rights should be given proper consideration. Ms Bolton did not appear to contradict the importance of a full and fair consideration of an individual's Convention rights when deciding whether or not to grant injunctive relief, but brought to our attention the fact that these matters had been considered very fully before HHJ Cameron.[12]She also referred us to the recent decision in Broxbourne Borough Council v Robb [2011] EWCA Civ 1355, which she argued provided a clear ratio that it is no defence to a committal application for a Romany gypsy, even one with young children, to claim they have nowhere else to go after they have been ordered to leave land which they occupy in breach of planning control.[13]Mr Jones, asked whether he accepted that this was indeed the ratio of Broxbourne, was prepared to agree subject to qualification of the word “defence”. He sought to insert the word “automatic” before it so that the ratio would read :
"It is not an automatic defence to a committal application for a Romany gypsy to claim they have nowhere else to go."
[14]Further, he sought to distinguish the facts of Broxbourne from the facts here. He observed that the individual concerned in Broxbourne had deliberately moved on to the land in breach of an order and he had done nothing to find himself alternative accommodation. Mr Jones was anxious to assure the court that that was not the situation here and that Mrs Coates was in complete ignorance of the injunction when she moved onto the land. She would not be in the position she is today were it not for the consistent failings, as he would have it, of the local authorities to comply with their statutory duty to provide a sufficient allocation of land for residential use by Romany gypsies.[15]Ms Bolton further relied upon the decision in Sheridan v Basildon Borough Council [2012] EWCA Civ 335- ahousing case in which it was held that the offer of bricks and mortar accommodation to a Romany gypsy who claimed to have no where to go was capable of amounting to an offer of suitable accommodation when the gypsy was removed from an unlawful site. The relevance of that decision, Ms Bolton argues, to the facts of the present case is that the local authority here is prepared to rehouse Mrs Coates in bricks and mortar. In fact she has previously been a tenant of a traditional council house in which she lived from 2000 to 2003, which she bought from the council and then sold. There was evidence from the appellant herself to the effect that she had been offered housing by the local authority. Mr Jones for his part countered with the information that any offer of rehousing did not relate to a specific property and that any property that was offered to Mrs Coates would have to be suitable for the particular needs of the family, in particular, her disabled son.[16]With that background, Mr Jones advanced the following grounds of appeal. First, he complained that the judge had erred in applying the wrong standard of proof to the issues he had to decide. Mr Jones submitted that the judge had in effect relied upon findings of fact made by HHJ Cameron to the civil standard of proof, the balance of probabilities, in finding in the council's favour. Given the burden of proof was to the criminal standard where wilful breach of a court order is in play, the judge must have misdirected himself and taken into account irrelevant matters.[17]Second, he argued that the judge had failed to apply the test of whether or not he was sure that the appellant was in wilful breach to the questions of whether she had alternative accommodation that accorded with her Romany gypsy lifestyle, whether she had resources to go elsewhere and whether she had indeed, as she insisted, bought the premises ignorant of the existence of the injunction. Mr Jones did not shrink from criticising the council for failing “to inform those who were representing Mrs Coates” of the existence of an injunction when the relevant searches were carried out for the purchase to take place.[18]Mr Jones argued that the material was not there for the judge to find to the criminal standard that she was in wilful breach and he complains that the judge made no direct reference to the Convention rights of the appellant when he reached his conclusions. In particular, Mr Jones complained (and this is potentially a separate or sub-part of the first ground of appeal) that the judge failed to perform appropriately the balancing exercise as to what was proportionate when imposing a prison sentence.[19]For my part, it was not clear to me the extent to which the entirety of this argument relating to alternative accommodation survived Broxbourne. However, to the extent that it is relevant, it is plain that the judge did appreciate the standard that he had to apply and he recorded Mr Jones' submissions to that effect without demur. He accepted, as it seems to me reading his judgment as a whole, that he had to be satisfied to the criminal standard that Mrs Coates was in wilful breach. He said in terms that he could not rely on the findings of HHJ Cameron as to the availability of accommodation elsewhere, for example with an uncle or with a parent, and he could not make such findings without hearing evidence himself. But what he could do was act upon admissions made by Mrs Coates to the effect that she had alternative accommodation available (whether or not the precise location of the property had not yet been identified by the local authority). To my mind, all that the judge was doing when he was reciting what had happened before HHJ Cameron was doing what many judges do, particularly in an extempore judgment: they recite the background to the present proceedings.[20]As Ms Bolton observed, the judge was not required to ask himself whether he was satisfied beyond reasonable doubt that the appellant had accommodation available to her that accorded with her Romany gypsy lifestyle. He was required to consider whether he was satisfied beyond reasonable doubt that it was possible for her to comply with the terms of the injunction and he declared that he did. Accordingly, I for my part was not persuaded there was any merit in the first ground of appeal under the heading “standard of proof”.[21]I turn to what Mr Jones has categorised as his “human rights” arguments. He submitted that the judge had demonstrated an inappropriately dismissive attitude to the human rights issues in this case. He summarised the judge's approach as being one of dismissing the rights and interests of Romany gypsies or those who belonged to the travelling community as simply “hundreds of cases” which involve hundreds of human rights arguments. He took us to page 38H of the partial transcript we have of the hearing. HHJ Simpkiss, having heard some submissions from Mr Jones in relation to the law and the facts, said this:
"Subject to that, but I want to finish reading this skeleton and it is fair that I should read it. It is essential that I should read it but I have not unfortunately -- I mean one of the problems that arises in this type of case, and I have had it before, several times they get listed in shortish appointments and then one is faced with hundreds of human rights cases. I have taken a robust line so far and I have been threatened with the Court of Appeal, I have not yet been appealed. [Makes a reference to the Master of the Rolls]. I will finish reading this skeleton and I will keep my mouth shut that'll probably speed things up. I will hear from you just concluding what you are going to say. I am not going to decide the adjournment point at the moment because part and parcel of that, I think, is going to be whether I have had enough time to do justice to this case."
[22]Mr Jones takes exception to the reference to “hundreds of cases”. He couples that with remark made in an unapproved note of judgment to this effect:
"The rest of his defence refers to the body of voluminous litigation before the European courts relating to breaches of planning permission"
[23]Mr Jones argues that when you take these comments together they indicate that the judge has a closed mind to the human rights issues in the case, to the human rights issues involved where there are alleged breaches of planning control, particularly in the case of Romany gypsies or travellers.[24]To my mind this was but the first of a number of personal and totally inappropriate criticisms made by Mr Jones. To be fair to him, when he realised the import of how his criticisms might be read, he did attempt to retract them, but his intemperate argument did his cause no favours. It displays an excess of sensitivity. The judge, when he referred to the “hundreds of cases” before him was doing no more, no less, than what many a judge will do which is try to discourage the over citation of authority particularly in a case listed for only a short period. He wanted to keep an own eye on the clock, to get the advocates to keep their eye on the clock and to focus on the issues before the court. He did not wish to travel over ground that had been rehearsed before unless it was relevant to the issues before him, nor did he wish to be taken through a whole series of cases which established principles which were in fact common ground. It is plain to my view, from the partial transcript that we have, that the references made by the judge were perfectly legitimate. He was not intending to underplay or undermine the importance of human rights jurisprudence in the European court. He was merely ensuring that counsel kept their references to authority to a minimum. Far from the judge displaying a dismissive attitude to the human rights arguments, it is plain that he gave appropriate time to all relevant arguments. At one stage he complimented Mr Jones on the cogency and lucidity of the arguments that he had been advancing and made sure that other cases in his list were moved so that he could give full justice to this case.[25]Similarly, Mr Jones accused the judge of behaving improperly when he made what has been described as “the filibustering comment”. This appears at page 48E of the transcript. The judge said that he was quite keen to hear about what Mr Jones said about Broxbourne but he was concerned about the other cases in his list and wanted to know how long this case would last. Mr Jones attempted to reply and the judge said this:
"I have to say I have experienced what I can only describe as filibustering arguments in these sorts of cases before. I am certainly listening to what you sat but it is down for two hours, your side have not indicated for a moment that that was not going to be an adequate estimate. They should have done ages ago. I feel slightly that you are trying to pull a loaded gun to my head..."
[26]Mr Jones, as I have indicated, retracted his earlier assertion that this passage displayed prejudice on the judge’s part against those who represent gypsies, but he did still argue that this showed an unfortunate attitude towards those in Mrs Coates' position.[27]I have already noted the extent of time that the judge gave this hearing, and, to my mind, the mention of the word “filibustering” did not indicate prejudice to Mrs Coates' case. This was a case where an application for an adjournment had been made to a judge who had a busy list in front of him. If counsel were so minded they could try to prolong their submissions so that they got the adjournment for which they had contended by another means. I do not take the judge's comment as indicating any kind of prejudice against Mr Jones for representing a Romany gypsy. This was simply another attempt to get counsel to focus.[28]I come to the same conclusion on Mr Jones's final point, which was an allegation that the judge had demonstrated prejudice, albeit not conscious prejudice, on the grounds of the appellant's ethnicity. This complaint was based on a comment which comes towards the end of the hearing when the judge came to sentence Mrs Coates. Unfortunately this is an aspect of the case where a full transcript might have been of assistance because what happened is in dispute. We have a note of the judgment from Mr Jones's instructing solicitor that HHJ Simpkiss said :
"HHJ Simpkiss – Sentencing, Mrs Coates stood for the Court. No doubt Mrs Coates you are used to these kinds of cases."
[29]Ms Bolton, who was also present, informed us that, as she understood what

the judge said to be :

"No doubt you are used to these kinds of proceedings."
[30]As soon as the comment was made, whatever the exact terms, Mr Jones, having understood the judge to be suggesting that the appellant was familiar with committal proceedings and being sentenced to imprisonment, raised his concerns with the judge. Ms Bolton has recorded that the judge responded that Mr Jones had got it wrong. That was not what he meant. He was simply referring to the fact that she must be familiar with the proceedings as far as this land in particular was concerned. Nevertheless, Mr Jones has argued before us that, given Mrs Coates has only appeared before the courts on one or two previous occasions in relation to this land, this was an inappropriate comment and indicates some kind of closed mind towards Mrs Coates.[31]Whatever words were used having considered the transcript of the proceedings that we do have and the note of the judgment, I have no doubt that there was here simply a misunderstanding on the part of Mr Jones. The judge did not intend to slur Mrs Coates with an implication that she was somebody who was repeatedly guilty of breaching court orders. Once the judge had said these words and given an explanation, (if that is what he did) that should have been the end of the matter. This was not a point not worth pursuing and I do not intend to dignify the complaint with further consideration. I detect here no prejudice, conscious or unconscious on the part of the judge towards Mrs Coates in particular or Romany gypsies in general.[32]The final ground of appeal is in relation to the actual sentence imposed. Mr Jones claims that the judge's approach to sentencing was irrational. He took the view that he should apply the same period for compliance with the court order as was given in Broxbourne. Mr Jones complains that here again the judge has failed to refer appropriately to Mrs Coates' human rights and he has made no allowance for the exceptional needs of her and her family. He submitted this was an inappropriate way of approaching Broxbourne. Again, in my view, it is important to read all that the judge said. When one does that it is absolutely plain that the judge was acutely aware of the personal circumstances of Mrs Coates and the needs not only of her and her children but in particular of her disabled child. The judge did not blindly follow the periods and sentence handed down in Broxbourne. I have no doubt that the judge very much bore in mind the appellant’s personal circumstances (repeatedly put before him by Mr Jones) when determining the sentence, exercising his discretion to suspend the order and granting a period of time for compliance. The fact that the judge noted this was the same compliance period as provided for in Broxbourne does not mean it was not appropriate and it certainly does not mean that the compliance period was irrational.[33]Therefore I would reject Mr Jones's argument in this respect as well. A judge is not obliged to reiterate as a mantra all the considerations that he has borne in mind provided it is clear that he has taken all relevant circumstances into account.[34]For all those reasons, therefore, I am satisfied that this appeal should be dismissed.[35]In reading the papers for this case, two matters struck me as of particular importance over and above the detailed matters that my Lady has so clearly spelled out. The first was that this is a case which involves an order committing a young mother to prison, albeit a suspended order, she being the mother of three children, the eldest having significant disabilities and she being an individual who has the particular aspects of her ethnicity, culture and finances that my Lady has summarised. The second matter that struck me was that experienced senior junior counsel plainly left the courtroom on the day of the hearing considering that the approach of the judge both to the manner in which the hearing was conducted and also to the structure and legal content of the judgment had been markedly in error and, as counsel told us this morning, that the mother had thereby been the victim of a massive injustice. That caused me to look anxiously at each of the matters raised. In the cold light of that process, albeit at some distance from the courtroom on the day, partly because clearly we were not there but also because the notes of the process are not complete, I am however entirely satisfied in the same terms that my Lady has spelled out, that this appeal can only be dismissed and I too therefore agree.

order

in other words, whether it was possible for her to comply with it. He argued that she had nowhere else to go and therefore she could not be described as being in wilful breach. He referred the judge to Mrs Coates' ethnicity and lifestyle and emphasised the importance to her of not being housed in bricks and mortar. He also properly brought to the judge's attention the difficulties that Mrs Coates faces in looking after her children, in particular her disabled child, as a single mother. Order: Appeal dismissed Post Judgment Discussion LADY JUSTICE HALLETT: Any consequential orders? MR JONES: My Lady, yes. I do apply for an extension of time. The order obviously ran out at some stage in October, for Mrs Coates to comply with the court order. LADY JUSTICE HALLETT: Was it, I cannot remember, presumably it hasn’t been running … MR JONES: It has been stayed. LADY JUSTICE HALLETT: It has been stayed pending the resolution of the … MR JONES: Pending resolution of the … SPEAKER: …. Contact, I got that. MR JONES: It has been stayed pending this resolution and I ask for no order extending it. This is a matter, you have all the personal facts, I won't reiterate them, but I do make an application to extend it for a further 28 days. LADY JUSTICE HALLETT: Ms Bolton? MS BOLTON: That's not opposed. LADY JUSTICE HALLETT: Right, well we … let's just think. We have, what day are we today? I think if it is probably better if we make sure we have a date in mind. MR JONES: Well, today is the 7th LADY JUSTICE HALLETT: 7th … MR JONES: 8th. It does occur to me that permission to appeal from HHJ Cameron's order, which you anticipated would be determined in the course of the next week or so… SPEAKER: Determined on the papers, yes. MR JONES: If permission is given to appeal what is to happen to this order? LADY JUSTICE HALLETT: That is just what I was thinking. MS BOLTON: Well my Lady, these are all parts of the discussions of the Court of Appeal in Broxbourne. A stay was put in place there. The fact there is a court order and there isn’t any accommodation, and otherwise you will be permitting a continued breach of a court order. It is my submission that that should not be a consideration at this stage. LADY JUSTICE HALLETT: The High Court judge won't be able to do anything about this order, even if they granted permission to appeal, would they? It is only a question of what we can do. Is that right? MS BOLTON: I believe that's correct. LADY JUSTICE HALLETT: Well, given that both I and my Lord are in the building for the next, well … to the end of term. LORD JUSTICE MCFARLANE: : … We are effectively putting the order back in place, as it were, on HHJ Simpkiss LADY JUSTICE HALLETT: So liberty to find … LORD JUSTICE MCFARLANE: : … apply to the County Court. LADY JUSTICE HALLETT: Yes. I don’t know if you both heard that. My Lord was saying … effectively what we are doing is putting the County Court order back in place. Therefore if we allow 28 days, and if there needs to be any further adjustment in the light of perhaps something the High Court judge says or whatever, then the parties could return to the County Court, couldn’t they? Is that right? LORD JUSTICE MCFARLANE: To vary the suspension… LADY JUSTICE HALLETT: To vary the suspension, if there were grounds. MR JONES: Yes, because it’s a County Court order. LADY JUSTICE HALLETT: County Court order, and if there were grounds. So it has to be good grounds, Mr Jones, I am not suggesting you could just potter back and say we would like a bit more time and a bit more time, but supposing something happened that truly affected things – that’s where you ought to go, isn’t it? MR JONES: I believe that's right. I would be reassured if my learned friend also agrees so we don’t … MS BOLTON: My Lady, I do agree …. LORD JUSTICE MCFARLANE: Yes. But it would be the alternative is for this court to be running this bit of the case, and I think that is not … LADY JUSTICE HALLETT: Yes, it would be better if it went back to the County Court. MR JONES: I cannot see any reason why it shouldn’t, and obviously a note will be taken of what your Ladyship and your Lordship has said, and I note of course that there needs to be good grounds, but subject to that there are good grounds; it seems to me perfectly proper to go back to them. LADY JUSTICE HALLETT: So right, in which case we will say 28 days, shall we fix the actual date? LORD JUSTICE MCFARLANE: Fix the date, one is … what is Thursday in four weeks' time. MS BOLTON: That would be the 7 December. LADY JUSTICE HALLETT: 7 December? MR JONES: 7th. LADY JUSTICE HALLETT: Very well, well the date is now 7 December Any other consequential orders? MS BOLTON: My Lady, the respondents apply for their costs in this matter. Obviously we have been successful and accordingly we do seek our costs to be assessed, if not agreed LADY JUSTICE HALLETT: What is Mrs Coates position? Is she publicly funded? MR JONES: Publicly funded with a nil contribution. I ask for the usual … I accept the usual order LADY JUSTICE HALLETT: You accept … So it is to be the usual order … costs but not to be enforced without leave of the court? MR JONES: Yes indeed, my Lady. LADY JUSTICE HALLETT: And do you require any planned taxations? MR JONES: We do ask for detailed assessment of legal aid costs, yes, on instructing solicitors. LADY JUSTICE HALLETT: Thank you, yes certainly. LORD JUSTICE MCFARLANE: Plainly Mrs Coates will make her own decision, but the local authority, as I understand it, still have open their offer to rehouse her but that involves her engaging in the process of being assessed of her housing needs and the other consequential procedural steps. MR JONES: Indeed, my Lord. LADY JUSTICE HALLETT: And we do have Christmas coming up, and I would hate to think about her and her family with nowhere to go because she hadn’t engaged with Christmas coming up, if she were to continue to lose in the court, so I hope you will give her some sound advice Mr Jones, because she has got to think of the children. Thank you.