Smith v Doncaster Metropolitan Borough Council [2014] EWCA Civ 16

[2014] EWCA Civ 16Case No A2/2013/3593
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Seymour QC (sitting as a judge of the High Court)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/01/2014
Before
LORD JUSTICE PITCHFORDSIR STANLEY BURNTON
Between
NIGEL SMITHAppellantDONCASTER METROPOLITAN BOROUGH COUNCILRespondent
Michael Paget (instructed under Direct Access) for AppellantJuan Lopez (instructed by Sharpe Pritchard, London Agents for Legal Services, Doncaster MBC) for the RespondentHearing Hearing date: 18 December 2013
JudgmentSir Stanley Burnton :Introduction
[1]On 18 December 2013 we heard the appellant’s application for permission to appeal against the order of His Honour Judge Seymour dismissing his application for his discharge from the sentence of imprisonment imposed for his contempt of court. We granted permission. Having heard Mr Paget’s submissions on his behalf, we stated that his appeal would be dismissed. We said that we should give our reasons in writing at a later date. These are my reasons for deciding that his appeal should be dismissed.

The facts

[2]The claim against the appellant arose from breaches of planning restrictions relating to Manor Farm, Moss in Doncaster. On 15 April 2013 His Honour Judge Stewart QC, sitting as a judge of the High Court, made an order against the appellant forbidding him:(a) from using specified land for residential development, including the occupation of caravans or mobile homes for residential purposes;(b) from using any part of the Farm for siting or storage of trailers or portacabins;(c) from using any part of the Farm for office or business purposes; and(d) from undertaking any development on the Farm without a grant of planning consent.[3]In addition, the appellant was required by no later than 17 May 2013: a) to cease the residential use of the Farm, which included the removal of all caravans and mobile homes, vehicles and residential paraphernalia; b) to cease the office and business use of the Farm, which included the removal of all portacabins and trailers associated with the office and business uses; and c) to remove all hardcore and access roads laid on the Farm.[4]The appellant had agreed to purchase the Farm from his co-defendant Nina Annie Winstanley, who was also made subject to an injunction in similar terms. He was in possession of the Farm, but he failed to comply with the orders listed above under subparagraphs (a), (b) and (c) under paragraph 2 and all of those set out under paragraph 3 of my judgment. In consequence, the claimant planning authority (“Doncaster”) applied to commit him to prison. On 8 July 2013, His Honour Judge Seymour found the appellant’s contempts proved. He imposed a sentence of 12 months’ imprisonment, but suspended it provided there was full compliance with the injunction within 28 days, i.e. by 5 August 2013. The transcript of the hearing before His Honour Judge Seymour shows that the appellant sought a period of one month to comply fully with the injunction, and accepted that he would have to comply fully (involving among other things the removal of the hardcore) within 28 days and was fully confident that he could do so.[5]Doncaster carried out an inspection of the Farm on 6 August 2013, by which date the appellant should have fully complied with the injunction. He had not done so. Doncaster applied for the activation of the committal order. After a number of adjournments, the application came before Sweeney J on 5 September 2013. There had been a site visit on the previous day, which found numerous continuing breaches of the injunction: hardcore surfaces remained; there were three lorry back containers; there was an office block with accommodation, caravan and veranda and washroom. In addition, there were two double unit dog kennels, four structures of various sizes used as chicken or wildfowl sheds and various items of metal fencing, wooden pallets, a skip, oil drums, land drainage pipes, dismantled chicken coops, a metal feeder pen and various concrete blocks or slabs.[6]The application was further adjourned until 13 September 2013, when Sweeney J gave judgment. He said:
“30. I accept, as Mr Paget submits, that the purpose of a committal sentence is two-fold, both coercive and penal. … 31. … there was a blatant and effectively complete failure to comply with Judge Seymour’s order within the appropriate time and … there remains a continuing failure to comply with it, albeit one which does not require the presence of Smith to put the outstanding matters right. … 32. As the authorities to which I have made reference make clear, in a case such as this, involving a long history of flagrant breaches of the planning law, for the courts to do other than impose a custodial sentence would diminish respect for Court orders, undermine the authority of the Court and subvert planning law. 33. My starting point is 12 months’ imprisonment. Bearing in mind the dual purpose to which I have made reference and that the coercive purpose has, albeit belatedly, enjoyed some success, it seems to me that in the exercise of any discretion the proper sentence to require Smith to serve is one of nine months’ imprisonment. That is the order that I make.”
[7]Accordingly, the appellant was consigned to prison. Some seven weeks after Sweeney J’s order, he applied to Cox J for an order for his release from the remaining terms of his sentence. By the date of the hearing before her, he had achieved minor success in his planning appeal. However, he remained in breach of the injunction in relation to the hardcore. Cox J refused his application. At paragraph 8 of her judgment, she said:
“In all the circumstances, on the material which I have seen, the coercive purpose of the sentence of imprisonment imposed by Sweeney J remains to be satisfied. To the extent that there has been partial satisfaction, much of which is due to the action taken by the Council, this cannot justify the Defendant's release at this time. To release him on such a basis would in my view undermine the basis of the order for his committal. In relation to the penal purpose I note of course that the Defendant has not yet served a quarter of the sentence of imprisonment imposed. The fact is that as is clear from the judgement of 13 September, this Defendant admitted multiple contents. He was found to have been openly defiant of the injunction order of the court. Having regard to Mid-Bedfordshire District Council v Brown [2005] 1 WLR 1460, it is noteworthy that in this case a contempt spend a significant period, during which the court repeatedly advised the defendant of the need for his compliance with the court's orders. Throughout he had had the ability to comply and has chosen not to. There has been a continuing series of wilful breaches of the order and each breach has been deliberate and committed in full knowledge of the breach. The disregard for lawful planning enforcement, having regard to Sweeney J's judgement, is particularly high. There is no evidence before the court of the Defendant having taken any productive steps whatsoever to secure full compliance. There is therefore a high degree of deliberate flouting of the court's order. As Sweeney J expressed it, the Defendant has "cocked a snook" at the court and cannot attract any sympathy.”
[8]On 14 November 2013 an order was made in the Chancery Division requiring the appellant to be give up possession of the Farm. He has ceased to be in possession of the Farm, and he contends that as a result it is no longer in his power to rectify the remaining breach of the injunction, namely the failure to remove the hardcore. He again applied to be released from his sentence, on the basis that the order of Sweeney J ceased to have any coercive effect. His application came before Judge Seymour on 27 November 2013. Judge Seymour’s refusal of the application is the subject of the appeal to this Court. In his careful judgment, the Judge remarked that there was no evidence, other than the appellant’s assertions, that he had done anything to remove the hardcore. The Judge concluded:
“41. Consequently, as it seems to me, the question which I have to decide is simply this. On the basis – which is the only basis upon which I can proceed – that the order of Sweeney J was entirely appropriate, has there been anything since which ought properly in justice and fairness to Mr Smith to persuade me that Mr Smith has purged his contempt? There is, in fact, absolutely nothing. …”

Judge Seymour therefore dismissed the application.

The grounds of appeal

[9]There are two grounds of appeal: a) The judge was wrong to refuse the application in circumstances where no coercive element of the original sentence remained. b) The judge was wrong to conclude that the punitive element continues for the whole of the original sentence.

Discussion

[10]The grounds of appeal recognise that there are two elements of a committal sentence imposed for breach of an injunction, a punitive element and a coercive element. The appellant seeks to be discharged on the ground that, since he is no longer in occupation of the Farm, it is no longer in his power to comply with the injunction and so purge his contempt, and therefore there can be no practical coercion applicable to him.[11]In my judgment, the fallacy with the appellant’s grounds, despite their able argument by Mr Paget on his behalf, is that they assume that the blameworthiness of the defendant’s conduct, and similarly the punitive element of a sentence, are fixed when it is imposed. Persistent failure to comply with an injunction after imposition of a sentence of committal aggravates the gravity of the defendant’s conduct, and therefore will increase the weight to be given to the punitive element of the sentence. In JSC BTA Bank v Solodchenko and others [2011] EWCA Civ 1241 [2012] 1 WLR 350, Jackson LJ said, in a judgment with which Carnwath LJ and the Master of the Rolls agreed:
“56. In the case of continuing breach, out of fairness to the contemnor, the court may see fit to indicate (a) what portion of the sentence should be served in any event as punishment for past breaches and (b) what portion of the sentence the court might consider remitting in the event of prompt and full compliance thereafter. Any such indication would be persuasive, but not binding upon a future court.”
For present purposes, the crucial words in this paragraph are “in the event of prompt and full compliance” after the imposition of the sentence. In the present case, far from such compliance, there was continuing breach. The order of the Court was flouted even after the imposition of the sentence by Sweeney J. Until the appellant ceased to be in possession of the Farm, the hardcore remained in breach of planning control and in breach of the injunction.[12]It follows that the fact that the punitive element of a committal sentence ceases to be relevant does not require the sentence to be discharged. On an application such as the present, the Court must review the conduct of the applicant in order to assess whether it justifies his release from his sentence. That is what the judge did in this case. He made no error of law in doing so. To the contrary, I agree with his conclusion.[13]In these circumstances, in common with Judge Seymour, I could see no justification for the appellant’s application, and I agreed that the appeal must fail. Lord Justice Pitchford[14]I agree.