[2013] EWHC 1365 (QB)

[2013] EWHC 1365 (QB)Case No UQ 11 X 04529
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 12 th April 2013
Before
HIS HONOUR JUDGE SEYMOUR QC
Between
LADBROKES BETTING AND GAMING LIMITEDClaimantTERENCE EDWARDSDefendantLADBROKES BETTING AND GAMING LIMITED Claimant/ Respondent- and -TERENCE EDWARDS Defendant/ Applicant
Digital Transcription of Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTelephone: 020 7067 2900 Fax: 020 7831 6864 DX: 410 LDEEmail: info@martenwalshcherer.comWebsite: www.martenwalshcherer.com
MR. ANDREW BODNAR (instructed by Messrs. Clyde & Co. LLP) for Claimant/RespondentMR. JULIAN GUN CUNINGHAME (instructed by Messrs. SJ Solicitors LLP) for Defendant/Applicant
Judgment
[1]The application before me is an application on behalf of the defendant, Mr. Terence Edwards, for an order releasing him from prison on the grounds that he has purged his contempt for which he was sentenced to prison by me in the first place.[2]As far as is presently material, the background to the present application is this. The defendant, Mr. Edwards, over a period of time, has been engaged in disputes with the claimant, Ladbrokes Betting and Gaming Limited, as a result of the perception on the part of the claimant that Mr. Edwards was in the habit of seeking to abuse the process by which bets were placed at betting shops run by the claimant. The detail of his modus operandi is not presently material. What is material is that in the course of seeking to ventilate his grievances as a result of the objections of the claimant to his conduct, Mr. Edwards embarked upon a course of harassment of various of the officers and employees of the claimant and, in particular, Mr. Nicholas Rust, the Chief Executive Officer. As a result of his activities the claimant issued proceedings on the 5 thDecember 2011 seeking injunctions prohibiting Mr. Edwards from entering any of the claimant’s premises, placing any bet or undertaking any gambling activity at the claimant’s premises or pursuing any course of conduct which amounted to harassment of the claimant’s employees or members of their families.[3]An application was made without notice on 6th December 2011 to Wynn-Williams J for an injunction in the terms of the injunction sought in the claim form which I have summarised. Wynn-Williams J made an order in the terms that he was invited to make and provided for a return date on 12th December 2011. On the 12th December 2011 the matter came before Stadlen J. Mr. Edwards, I think, was not present but Stadlen J continued the injunction until trial or further order.[4]As a result of breaches on the part of Mr. Edwards of the injunctions granted by Stadlen J, on 17th October 2012 the claimant applied for the committal to prison of Mr. Edwards for the breaches complained of. On 8th November 2012 this matter first came before me. On that occasion Mr. Edwards was present in court acting as a litigant in person. On that occasion I gave directions with a view to a committal hearing taking place. I also explained – I think quite clearly – to Mr. Edwards the necessity to comply with the orders of Stadlen J and the likely consequences if he did not.[5]The hearing of the committal application came before me on the 13th February of this year. Again, Mr. Edwards was acting in person. Mr. Edwards admitted certain of the breaches which were complained of and I took the view on that occasion that, in the light of those admissions, the appropriate course was to make an order for his committal to prison for a period of 12 months but to suspend that order on terms that it would not take effect, and he would not be sent to prison, as long as he thereafter complied with the orders of Stadlen J. Unhappily, at the conclusion of that hearing in this building Mr. Edwards committed – as I have subsequently found – two further breaches of the order of Stadlen J by harassing Mr. Rust and Mr. Richard Mullings, an employee of the claimant.[6]As a result of those incidents, but after Mr. Edwards himself had left this building, Mr. Andrew Bodnar, who appeared then and appears today on behalf of the claimant, asked that I sit again in this matter in order to hear evidence from Mr. Mullings of what had taken place, and in order to consider what consequences should follow from the matters that I was told had occurred after I had concluded the hearing in the morning of 13th February.[7]I heard evidence from Mr. Mullings. Mr. Mullings, obviously, was not challenged as to what he said because there was nobody here to challenge him. But, recognising that, I nonetheless was satisfied that his evidence was reliable and that the appropriate course was for me to lift the suspension on the committal to prison of Mr. Edwards.[8]For reasons which are unclear, but which are not particularly relevant, the warrant for the arrest of Mr. Edwards was not activated, in the sense of Mr. Edwards being arrested, until the 19th March. In the order which I made in the afternoon on the 13th February I directed, amongst other things, that Mr. Edwards should be produced within 24 hours of being arrested so that he could have an opportunity of giving whatever explanation he wished to give of the matters which were said to have occurred after the first hearing on 13th February, and have an opportunity to challenge, if he wished, the evidence which was relied upon on behalf of the claimant in relation to those matters.[9]Mr. Edwards was produced in court before me – in this very court as it so happens – on the 20th March. On that occasion Mr. Edwards disputed the evidence which was relied upon on behalf of the claimant. He cross-examined Mr. Mullings, who again gave the evidence which I had heard on the afternoon of the 13th February. He called Mr. Cerroni, another employee of the claimant, who had been present on 13th February and happened to be present on the 20th March also, and examined him. Mr. Edwards himself gave an account of the events complained of on 13th February. That is material because on that occasion Mr. Edwards disputed that he had infringed further the orders of Stadlen J on 13th February and, far from offering any sort of apology or expressing any sort of remorse, his approach to the allegations against him in court I think is best described as “combative”.[10]I was satisfied, having heard the evidence, that even with Mr. Mullings being cross-examined by Mr. Edwards, and even with the evidence of Mr. Cerroni and that of Mr. Edwards, that which I had found when unchallenged on the 13th February in the afternoon was true. On that basis I directed that Mr. Edwards be committed to prison pursuant to the order which I had initially suspended but in relation to which I had subsequently lifted the suspension, and that is what happened.[11]The application now before me is that of Mr. Edwards to purge the contempts which I have found he committed. In his witness statement in support of this application Mr. Edwards adopts a far more contrite stance than he adopted on the 20th March. He accepts the truth of that which he previously denied. He expresses regret at his conduct on the 13th February. He expresses the desire hereafter to comply with the orders of Stadlen J. I note that that is what he says, but I also note that he said that before, and it was because he had said it before that I was persuaded on the 13th February, in the morning, that the appropriate order was an order for committal suspended for two years.[12]I am reminded by Mr. Julian Gun Cuninghame, who appears on behalf of Mr. Edwards on this application, and by Mr. Bodnar that there are two principal elements in any order for committal for contempt of court. One is punishment. There has been a breach; consequently punishment must follow. The other, in many cases, including this case, is what is sometimes described as the coercive effect; that is to say, to provide an incentive to somebody subject to an injunction hereafter to comply with it.[13]Mr. Edwards has been in prison for 24 days. That is something which I must take into account in considering principally the punitive element in the order for committal which I made. Mr. Edwards says, and it is not disputed, that between the 13th February (after he had left this building) and his arrest on the 19th March, he had not committed any further breaches of the order of Stadlen J. That is material for me to recognise in the context of the coercive effect or intended coercive effect of a suspended order for committal. The short point is that, but for the unfortunate circumstances following the first hearing on the 13th February, it seems that the order which I made in the morning of that day had the desired effect.[14]So the position in which I find myself on this application is, I think, essentially this. The order of Stadlen J continues in effect. It is incumbent upon Mr. Edwards to comply with it. If he does not, he will be in breach and he will be liable to be proceeded against in respect of any further breaches. There will come a time when Mr. Edwards will be released from prison even if I do not discharge him today. I am told by Mr. Gun Cuninghame that Mr. Edwards will be released home sometime in June. It is, I think, important for me to recognise that in this case – perhaps in many cases – the first concern of the court is to secure compliance. I therefore have to balance, on the one hand, the desirability of securing compliance with the order of Stadlen J not for days or weeks or months but until the trial, and conceivably indefinitely, and, on the other hand, punishing Mr. Edwards for his breaches of the order of Stadlen J. I have been reminded by both Mr. Gun Cuninghame and Mr. Bodnar of some observations of Waller LJ in Harris v. Harris [2002] FLR 253 where, in his judgment at page 260, Waller LJ indicated that he agreed with the leading judgment, that of Thorpe LJ, and went on to make these observations concerning the practicalities of discharging somebody who had been committed to prison for contempt where initially the order of the court had been suspended. The issue had arisen in that case whether, on discharging the contemnor, this court had jurisdiction to make a further suspended order for committal. The Court of Appeal decided that it did not and Waller LJ said this:
“In my view it actually adds very little to the armoury of the court to allow someone to 'conditionally purge' with the remainder of a sentence placed in suspense. Even on an unconditional release, it must be clear to Mr Harris that if he commits a further breach of the orders, the court will in assessing sentence take account of the fact that by his previous promises of good behaviour he was released part way through his ten month sentence. The court is likely to start from the position that he should at least serve that unserved part plus some further period for the contempts committed in breach of those promises, all subject to the overall limit of two years.”
[15]In the present case I sentenced Mr. Edwards to prison for 12 months. He is entitled to remission automatically, so that if I do nothing he will stay in prison until he has been there six months, subject to the point that he is, in any event, to be released home sometime in June pursuant to the arrangements currently in force in relation to prisoners. What is important, in my judgment, is that if there is any further contempt on the part of Mr. Edwards and I discharge him now, what he is facing is being in prison, subject to the appropriate home release provisions, for essentially a further five months plus whatever sentence may be imposed in respect of any further breach. I am confident that Mr. Gun Cuninghame will remind Mr. Edwards of that extremely useful guidance of Waller LJ. I am confident that Mr. Gun Cuninghame will also draw to Mr. Edwards’ attention the practical realities of his position as I am about to explain them.[16]I sit permanently in this court. Those whose function it is to list matters in this court tend to take the view – which seems to me to be sensible – that where a judge has dealt with a hearing and there is another hearing in the same matter, it is likely to assist if the matter goes back to the judge who has dealt with the case previously because the judge may be expected to remember something about it. This is the fourth hearing that I have presided over in relation to this dispute between the claimant and Mr. Edwards. It should not be assumed that that is coincidental. Mr. Edwards should therefore proceed on the basis that if there are any other allegations of breaches of the order of Stadlen J the probability is that I will preside over the hearing at which those allegations will be advanced.[17]So Mr. Edwards may perhaps wish to reflect upon these factors: first, the guidance of Waller LJ to which I have drawn attention; and, second, the probability that if there is any further allegation of breach of the order of Stadlen J, the matter will come back before me. Mr. Edwards might like to ponder whether, if that were to happen, and if I were to find that Mr. Edwards had been in breach of contempt again, I would be particularly forgiving.[18]In all of the circumstances I am satisfied that the period which Mr. Edwards has been detained is a sufficient period to meet the penal element in the order for committal which I made in his case. For the reasons which I have endeavoured to explain and to emphasise, I am minded to expose Mr. Edwards to the risk of having to control himself and comply with the orders of Stadlen J. Mr. Gun Cuninghame, for reasons that I well understand, in submission suggested that perhaps the risk was a risk that the court was running. It is not. It is a risk that Mr. Edwards is running. But I am disposed to expose him to that risk because I want him to comply. And, as it seems to me, the best chance of him complying hereafter is for him to be clear, as he is discharged from Pentonville Prison, that he will be going back in all probability, in all probability for a long time, if it is found that he commits any further breach of any of the orders of Stadlen J.[19]So for those reasons I am going to accede to the application. I accept what Mr. Edwards, on the face of his witness statement, says that now, at last, he does recognise the need to comply, he is truly sorry and he does intend to comply hereafter. He knows what will happen if he does not.[20]It is accepted, on behalf of Mr. Edwards, that it is appropriate for him to pay the costs of this hearing. I am invited to assess the costs summarily. A statement of the claimant’s costs has been prepared and put before me totalling £4,821 net of Value Added Tax. That is the amount in which I am invited to assess the costs.[21]A number of points have been raised on behalf of Mr. Edwards by Mr. Julian Gun Cuninghame. One relates to “Attendances on Others” where what is recorded are two periods, both of an hour and a half, by, it appears, Helen Bourne, a Grade A solicitor, and by Katie Woodcock who, I think, is a trainee. Mr. Gun Cuninghame is concerned that there is an element of duplication and he also wonders upon whom the attendances took place. Mr. Andrew Bodnar, on behalf of the claimant, has explained that the greater part of those periods, at any rate, is attendance upon him, and that I accept.[22]The next element to which Mr. Gun Cuninghame draws attention is “Work Done on Documents”. What is claimed is 4½ hours for Helen Bourne, who made a witness statement which runs to just over 5 pages of double-spaced A4 typing, and 21 paragraphs, and six hours from Katie Woodcock. The background to this application is actually extremely complicated. Although superficially what this hearing was concerned about was whether the court was satisfied that Mr. Edwards had purged his contempt and should be released from prison, in order to be able to reach a conclusion on that question, it was necessary for any judge (other than myself) to have explained quite carefully to him or her what the background to the application was because the circumstances were unusual and the background long and complicated.[23]I am entirely satisfied that it was appropriate for Helen Bourne to produce a witness statement, for the witness statement to have substantial attachments to it, principally but not exclusively, transcripts of earlier hearings, and with the experience which I have sitting in this court of seeing how much time is spent on preparing documents for a variety of different cases, it seems to me that the total of 10½ hours is, if anything, on the modest side.[24]The final point that I am invited to consider is whether it was necessary for Kate Pearson, a Grade C solicitor, to attend on Mr. Bodnar at this hearing rather than Katie Woodcock, the trainee. In practical terms, as one is only looking at two hours, £160, it is not perhaps the greatest point that has been raised. But bearing in mind the background to this litigation, and bearing in mind that, as a result of questions from me, Mr. Bodnar has actually had to seek some instructions, it does seem to me that it was entirely appropriate for a qualified solicitor to attend on him rather than a trainee who perhaps may not have been able to provide Mr. Bodnar with the assistance which he sought in answering my questions.[25]I take into account, obviously, these particular points which have been raised by Mr. Gun Cuninghame but essentially the focus of my attention, I think, is the bottom line figure. The bottom line figure, as I have said, is £4,821. It is a figure which, I have to say, seems to me to be very modest. It is certainly very modest in comparison with the costs which I have been persuaded at earlier points in these hearings have been appropriate. I am going to round the figure down simply to avoid any misguided impression that the exercise of summary assessment is some sort of detailed consideration pound by pound of what is being claimed. I am going to assess the costs which Mr. Edwards should pay at £4,800. (For continuation of proceedings: please see separate transcript)