James v James [2018] EWCA Civ 1982

[2018] EWCA Civ 88888Case No B2/2018/1810IN THE COURT OF APPEAL (CIVIL) DIVISIONON APPEAL FROM CENTRAL LONDON COUNTY COURT(HHJ GERALD)Venue Royal Courts of Justice, Strand, London WC2A 2LLDate Thursday, 9 August 2018
Before
LORD JUSTICE BEANLORD JUSTICE DAVID RICHARDS
Between
NAOMI JAMESAppellantHANNAH LOISA JAMESRespondent
Transcript of Epiq Europe Ltd 165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Mr Abid Mahmood (instructed by Reeds Solicitors) appeared for AppellantMs Alison Meacher (instructed by Machins Solicitors LLP) for Respondent
Judgment
[1]The Defendant shall be committed for contempt to HMP Bronzefield until such time as she complies with the injunction order of 1 June 2018 or until lawfully discharged, if sooner and that a warrant and arrest and committal be issued forthwith.[2]The defendant is to be brought before the Court at 12 noon on Wednesday 11 July 2018.[3]The Defendant can purge her contempt by compliance with the injunction order of 1 June 2018[4]The issue of costs of the application for injunction and application for committal are adjourned for consideration of the hearing on 11 July 2018 unless otherwise ordered."10. "At the outset of the hearing I explained to the Judge that as far as I was aware the Respondent did not have legal representation. The Judge asked the Respondent if she knew why she had been arrested and brought before the Court. The respondent did not provide an audible response.11. The Judge explained to the Respondent that she had been ordered by the court on 1 June 2018 to provide the details of where the NHS Pension had been paid to, and what had happened to it. The order included a penal notice that warned her that if she did not comply she could be arrested and sent to prison.12. If once in prison she complied with the order by providing a statement explaining where the NHS Pension went, where it has been spent, she could purge her contempt. Prison is the punishment for not complying with the Court order.13. The Judge said that the Clerk had told him that she had managed to speak to a solicitor yesterday. The Respondent responded by saying no, she had not spoken to a solicitor.14. The Judge asked the Respondent if the prison given her information about a solicitor who could provide her with legal advice. The Respondent said no.15. The Judge then spoke to the Respondent's partner, who was in Court. He gave his name as Mr Jay. He said that they were aware that the Respondent had breached the Court orders. He said that it was unfair to proceed with the hearing without the Respondent having the chance to get legal advice.16. As the Respondent wishes to have the chance to secure legal advice the Judge said that he would adjourn this hearing until 10 am on Friday morning. The Judge asked the prison staff if there was a phone in the cells of the Court which the Respondent had access to. The staff said they did not think there was. The Judge asked the prison staff about access to legal advice in the prison. The prison staff said they did not know, as they only transport prisoners they do not work within the prison.17. The Judge explained the adjournment meant that the Respondent is taken back to prison today and will be brought back to court on Friday. The Judge recommended that the Respondent or Mr Jay tried to contact a solicitor as soon as possible. The Judge asked the Respondent if she had any money. She said not. The Judge explained that she will be entitled to legal aid if she cannot afford representation. The Judge reminded the respondent that she had been provided with a bundle which includes the Court order which sets out what she needed to do to comply with it.18. The Judge said that he will list the matter for Friday morning, but the Respondent could come back earlier if she secured a solicitor and the solicitor wanted to make an application on the Respondent's behalf. If relisted for Friday this would give the Respondent the opportunity to secure a solicitor and for the solicitor to acquaint themselves with the file.19. What the Respondent needs to do is comply with the order of 1 June 2018. If she complies with the order she can make an earlier application to purge her contempt.20. The original order notified the Respondent that legal aid is available to her."21. "The Judge said to the Respondent that he strongly recommended that if she had access to the information that is sought by the Applicant that she provides that information and comply with the order of 1 June 2018. The Judge commented that he was sure that the Applicant, as the Respondent's sister, does not want her to be sent to prison, but the Respondent must provide the information required of her.22. The Judge asked the Respondent what she had done with the NHS Pension. The Respondent said that it had been received into one of her bank accounts. The Judge asked what she had done with the money. She said that she had distributed the £60,000 to some charities that were relevant to her father. The Respondent did not give any names or details of the charities...23. The Judge asked the Respondent if the money had been paid into the charities' bank accounts and if she had receipts. The Respondent said no...24. The Judge asked the Respondent if she had copies of her bank statements showing the withdrawal of the NHS Pensions. Did the withdrawals add up to the £66,000 that had been paid up to her? The respondent said that she was not sure.25. The Judge commented that if there were 5 charities this was £12,000 each. The Respondent said it was not an equal [amount] to each. The Judge asked how long it took to spend this money. The Respondent's reply was inaudible. The Judge asked if the money had been spent before these proceedings were issued. The Respondent said yes.26. The Respondent said she had a file of papers in a plastic bag in the cell which contained all the information she had about the NHS Pension. The Judge asked if Counsel for the applicant could see these documents. The respondent replied yes.27. The Judge asked if the documents included her bank statements showing where the money had gone to. The Respondent said she was not sure.28. The Judge asked where the bank statements would be if not in the bag in the cell, the Respondent said the documents would be at home. The Judge asked who else lived with her, the Respondent said Mr Jay. Mr Jay interjected by saying there were no documents at home. The Respondent had taken all the NHS Pension documents with her when she was arrested.29. The Judge asked the prison staff to confirm if the Respondent had any papers with her in the cell. The prison staff confirmed she had an inch worth of papers in a plastic bag. The Judge asked the prison staff if arrangements could be made for the documents to be given to Counsel, for Counsel to copy them and for the documents to be returned to Counsel. Prison staff said that this was possible if this is what the court directed. The Judge asked Counsel for the applicant [that is for the claimant] to obtain the documents, copy them and return them to the respondent. Counsel agreed.30. The Judge decided that the Respondent should return to prison and be brought back before the Court on Friday for a hearing at 10am." For whatever reason, no documents were in fact handed over. So the matter came back before the judge on the 13 July initially in the morning. Again, the appellant was unrepresented. Efforts were made to obtain a solicitor but these were unavailing. So the matter came on before the judge at 4.00 pm. The appellant asked for an adjournment to obtain legal representation. This was refused, as the order which the judge made recites. The order, so far as material, reads:31. "UPON THE DEFENDANT having been arrested and committed to prison on 10 July 2018 and produced at Court for the hearing at midday on 11 July 2018 for sentencing which was adjourned to 10am on 13 July 2018 to give the Defendant a further opportunity to obtain legal representation and furthermore for Mr Jay to seek to obtain representation for the Defendant AND FURTHER that the matter did not come on for hearing until 4pm 13 July 2018 as the court staff unsuccessfully attempted to obtain legal representation for the Defendant.32. AND UPON IT BEING RECORDED that the Defendant confirmed that she had not (contrary to what she said she would do on 11 July 2018 hearing) permitted the Claimant's counsel to take copies of the documents relating to the receipt and disposition of the Pension Funds in question (specifically, her bank statements) which she said she had in a plastic bag in the cell within the Royal Court of Justice BECAUSE, she told the court, there were no relevant documents in that bag and that all relevant documents were at the home she shared with Mr Jay BUT THAT Mr Jay later interrupted proceedings to state that no relevant documents were at their home but they were all with the Defendant in her cell.33. IT IS ORDERED THAT:[1]The Defendant's application for an adjournment to obtain legal representation is refused.[2]The Defendant be sentenced to 6 months in prison to be calculated from 10 July 2018 and be committed to HMP Brownfield.[3]The Defendant may apply at any time to purge her contempt by complying with the injunction order of 1 June 2018 in which event the court will determine whether and if so when the Defendant should be released early from prison THE COURT MAKING CLEAR TO THE DEFENDANT THAT THE SOONER SHE FULLY AND ACCURATELY COMPLY WITH THE 1 JUNE 2018 ORDER the more likely the court would be to deal sympathetically with such application and permit early release.[4]The Defendant do pay the costs of the application for injunction and application for committal to be assessed on an indemnity basis if not agreed." We have an unapproved transcript of the judge's judgment, which can be taken as replacing and closely corresponding with counsel's note of the judgment made by Ms Meacher at the hearing. I will not read out large tracts from it. Some of the findings are contained in the recitals to the order which I have read out. The judge asked himself whether it was appropriate in this case to proceed to sentence in the circumstances where the defendant does not have legal representation. He said that all that needed to be done was for the defendant to answer the simple questions: Where is the £66,000? Where has the money gone? Where is it now?; and a witness statement with any relevant documents was to be disclosed. He took into account that the defendant appeared to be a clever and articulate lady who fully understood the nature of the proceedings. He considered what would be an appropriate sentence to pass and came to the conclusion that it should be 6 months. He said that there was no alternative but for the sentence of imprisonment to be immediate. It would be inappropriate for there to be a suspended sentence. He gave a number of reasons for that. Firstly, £66,000 was a considerable sum of money and the claimant appeared to be entitled to at least half of it. Secondly, the explanation provided by the defendant that she had given away all the money in cash to charities whose names she could not recall was, as the judge put it, distinct from the evidence and he found it troubling. (For my part, I would go further and say it is plainly incredible. But to continue with the judge's observations:) Thirdly, he took into account the differing explanations of where the documents were, whether in the cell and in a plastic bag or at home and so on. Fourthly, he found that the defendant had acted deliberately and intentionally. Fifthly - this is a separate point - he had the impression that something untoward had happened to the money. Sixthly, the only person who could explain where the money has gone was the defendant and seventhly, he found the defendant was fully aware of the seriousness of the breach. He imposed a sentence of 6 months' imprisonment but again emphasised that if the appellant purged her contempt she could apply to the court to be released. The appellant did not apply to the court to purge her contempt. For my part, I find that startling, particularly if, as I am told is the case, a representation order was made or notice of acting was given by her present solicitors by 18 July. At any rate it was not until 3 August, 21 days from the hearing of the 13 July, that a notice of appeal, which of course is as of right, was lodged in this court. An application to purge the contempt could no doubt have come on much more quickly and it is not clear why the notice of appeal took three weeks to draft. At all events, it is now before us. Three grounds of appeal are helpfully set out in an advice drafted by Mr Dixon of counsel. Firstly, the appeal notice states that it is an appeal against the order of HHJ Gerald on 13 July 2018 to commit the appellant to prison for contempt of court for a period of 6 months. The appellant applies for an order that the order for committal to prison for contempt be set aside. The three grounds given are(i) the appellant was sent to prison in the absence of legal advice or representation;(ii) the court failed to take account of mitigation relevant to the appellant and(iii) the court did not take account of the best interests of the trial principle. It is submitted therefore that the decision to commit the appellant to prison was wrong or the length of the committal is excessive. There was an application for legal aid which the Civil Appeals Office granted without any delay. There was also an application for bail but, sensibly, that was not pursued in the light of an indication that the case would be listed for today. We have had the advantage of submissions today by Mr Abid Mahmood, for the appellant, and Ms Alison Meacher, for the claimant. By a new skeleton argument lodged yesterday, supported by his oral submissions, Mr Mahmood sought an extension of time and leave to amend the notice of appeal (a) to appeal against the committal order made on 6 July as well as that made on 13 July and (b) to appeal against the finding of contempt. He gave seven reasons why we should do this. Firstly, the process server's evidence, which was before the judge on the committal application, about service of the application to commit and of the notice of the hearing was only in the form of a witness statement of the process server not an affidavit. Secondly, the appellant was not advised of her right to silence. Thirdly, the proceedings were not in compliance with the European Convention on Human Rights. Fourthly, the judge's judgment did not contain any finding that he was satisfied of the alleged contempt beyond reasonable doubt. Fifthly, there was no good reason to shorten the time period of 14 days' notice which should have been given for the hearing on 6 July. Sixthly, the order of 1 June 2018 was not an appropriate one to be made without notice and seventhly, the appellant was a vulnerable litigant or witness. Mr Mahmood submits that all these factors should have been taken into account when deciding whether to go ahead with the hearing and if they had been brought to the judge's attention, he could and perhaps would have taken a different approach. I would allow an amendment to the notice of appeal on point (a), that is to say it should be treated against an appeal against the order for committal made on 6 July and its brief renewal on 11 July in so far as that has any separate existence, as well as against the order of committal made on 13 July. Even though the order of 6 July has now been subsumed in the order of 13 July, it is right to view the three hearings as a whole. There is an additional point made by the court (and not by present or previous counsel) in relation to the 6 July order, namely that it did not comply with the Contempt of Court Act 1981. I shall come to that later. I would however refuse permission to amend the notice of appeal to allow the appellant to challenge the recitals in the judge's order of 6 July, in particular, the finding by the judge that the appellant was in contempt of court by failing to comply with the order of 1 June. I reach that conclusion because there is nothing in the material placed before us to suggest any basis for challenging that finding of contempt. As I have already noted, the mandatory injunctions contained in the order of 1 June were binding and had to be complied with unless and until an application was made to the court to set them aside. Whether the appellant believed that nothing worse could happen to her than having a money judgment entered against her is entirely beside the point: all the more so because the order was endorsed with a penal notice making it clear to her what the consequences should be. In answer to Mr Mahmood's seven points: (1). The point about the process server's evidence. Civil Procedure Rule 81.10(3) requires that the application notice in a committal case must be accompanied by one or more affidavits specifying the alleged contempt with particularity among other things. That was complied with in the present case, as I have noted, by an affidavit from the claimant's solicitor. There is no separate requirement for the evidence of service of the application notice, which by definition comes later, and of the accompanying material to be verified by an affidavit of the process server. (2). As to the right of silence, I do not see what this has to do with the issue of whether or not a contempt has been proved, particularly as the appellant chose not to attend the hearing of the 6 July at which the judge found the contempt proved. (3). Nor do I see what the Convention has to do with the issue whether there had been a contempt. (4). It is correct that the judge did not recite in the order that he was satisfied beyond reasonable doubt that the appellant had failed to comply with the order for 1 June. This is of no consequence whatever, since it was and remains beyond argument that she had failed to comply. (5). The point about short notice of the hearing is a good one in theory but given the past history of the case and the fact that the appellant did not attend the hearing at all, the judge was amply justified in making the inevitable finding that the appellant was indeed in contempt. (6). Whether the judge had been justified in making the order of 1 June without notice and with immediate effect, rather than giving leave for an application to be made with a return date one week later, does not detract from the validity of the order nor the inevitability of the finding that by failing to comply with it the appellant was in contempt. (7). There is no medical evidence to suggest that the appellant is suffering such a severe loss of mental capacity that she is incapable of understanding the meaning of the order that she was required to attend court with a witness statement, nor to understand the penal notice which was endorsed on it. The judge, as I have noted, stated that in his view the appellant who had appeared before him was an intelligent and articulate lady and I see no reason to find otherwise. I now proceed to consider the order for committal on the 6 July and the subsequent order or orders in the light of the grounds of appeal and the further point raised by the court.. The order for committal made on 6 July was defective because section 14(1) of the 1981 Contempt of Court Act requires that any such order should be for a fixed term. This is not a matter of discretion, it is a mandatory requirement of the statute. The judge would have been justified, subject to the point about 14 days' notice, in issuing a bench warrant, but he should not have made an order for committal for an indefinite period. Turning to the hearing of 11 July, the judge was clearly right to advise the appellant to obtain legal representation but it is unrealistic, in my view, to have supposed that she could successfully do this from prison in one-and-a-half days. The obligation under paragraph 15.6 of Practice Direction 81 appended to CPR 81 is an obligation on the court to have regard to the need for the contemnor to be made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency, and to the need to give an unrepresented contemnor the opportunity to obtain legal advice. In Haringey London Borough Council v Brown [2017] 1 WLR 542, at [46] McCombe LJ said:
"46. At least until some improvement is made to the drafting of the legislation...it seems to me that it is important that all involved in committal proceedings in the County Courts should be aware of the route to be taken in applying for legal aid in such proceedings. For my part, I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are. It may be that, as Mr Bridge submitted here, consideration should be given to the promulgation of standard directions on the subject, either on the application notice itself and/or in any preliminary order regulating the procedure in an individual case."
I would echo that. It would surely not be rocket science for a court centre such as Central London County Court to have a standard handout to be given to contemnors in Ms James' position, not simply saying: "You have a right to legal aid" but giving practical assistance about how and to whom an urgent application should be made. Returning to the present case: as the judge observed, it is right that the appellant's partner, Mr Jay, was present and not in custody. It may be that he had a better opportunity than the appellant herself to make contact with solicitors but I do not think the fact that he might have had such an opportunity, or might have taken it up had he been more co-operative, is a valid answer to the point about the need for legal representation. As I have already emphasised, the obligation under PD 81 paragraph 15.6 is an obligation placed on the court, not on the contemnor's partner or family. We now come to the hearing on the afternoon of the 13 July. Mr Mahmood complains, and I have already said that I have sympathy with this point, that it was unrealistic to suppose that the appellant could successfully obtain legal representation in one and-a-half days while in custody. Ms Meacher submits however, that the period from 11 to 13 July should not be viewed in isolation. The appellant had been aware, at least from 25 June, of the need for legal representation. She reminded us of the covering letter from the claimant's solicitors, served with the application notice advising her to seek representation. I agree with Ms Meacher's description of the appellant's conduct as being an example of burying her head in the sand. Indeed, that is only part of the story. Her unco-operative and, it might be said, devious behaviour, in first telling the judge at the hearing of 11 July that she had the relevant documents in a plastic bag and then refusing or failing to hand over any documents at all, was deplorable. She emerges from this litigation so far with no credit at all. Nevertheless, I do consider that the judge was wrong to proceed to impose a sentence of immediate custody on an unrepresented appellant on 13 July. I do not consider that this appellant should have been the subject of an order for committal, as opposed to the issue of a bench warrant if she failed to attend court, until she had had a proper opportunity to have a solicitor or barrister make representations on her behalf to the court, or alternatively until she had expressly been given that opportunity with one adjournment and then deliberately failed to take reasonable steps to obtain legal representation. It follows that, in my judgment, the orders for committal of 6 July and 13 July must be set aside and the case remitted to the County Court for another circuit judge to determine the application for committal. I make it clear however that the findings of Judge Gerald recited in the order of the 6 July are to remain binding. I would add that in his submissions today Mr Mahmood volunteered to us that “without a shadow of a doubt” (in his words) his advice to his client, who has not been present today, will be to “get on with the witness statement”. If she complies fully, even at this late stage, with the order of the 1 June, I would not expect the committal application to result in any further period in custody. I would hope that with sensible advice from her experienced counsel and solicitors, she will even now see sense. Indeed that is one of the reasons, in my judgment, why there is such heavy emphasis in the Rules and Practice Directions on the court seeking to ensure that a contemnor has legal representation, because it is possible that advice from lawyers can persuade even as difficult and obstructive a litigant as the appellant to see sense. But that is only a hope I can express. If the appellant does not comply with the order of 1 June, does not seek to purge her contempt and simply buries her head in the sand again, then, in my view, on the renewed application to commit, the sentence would be entirely at large. We are not passing sentence today. Mr Mahmood, quite rightly, did not suggest that the fact that a contemnor is the primary carer for young children grants absolute immunity from any prison sentence. In my view if on the remitted hearing the appellant’s stance remains one of defiance then the fact that she has so far served between 3 and 4 weeks in custody would not be an answer to an application for a further period of committal. LORD JUSTICE DAVID RICHARDS: I agree with all that my Lord has said and for the reasons that he has given, I too would allow this appeal to the extent that he has indicated.

Cited in 1 later judgment