Amberley Construction Ltd v Paul Douglas Beamish
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MANCE |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1267 |
| Date | 31 July 2003 |
| Docket Number | B2/2003/1613 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 1267
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORTHING COUNTY COURT
(His Honour Judge Kennedy QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Mance
B2/2003/1613
MR LINCOLN CRAWFORD (instructed by Green Wright Chalton Annis Worthing, West Sussex, BN11 1TQ) appeared on behalf of the Appellant.
MR GOURLAY appeared on behalf of the Respondent.
Thursday, 31st July 2003
The defendant, Paul Douglas Beamish, appeals from the suspended committal order of His Honour Judge Kennedy QC in the Worthing County Court on 11th July 2003 committing him to prison for 28 days for contempt.
Mr Beamish is a project manager on construction sites. He was sued by the claimant, Amberley Construction Ltd, for damages for breach of an employment contract. On 21st May 2002 the claimant obtained judgment against Mr Beamish for £7,500. He was ordered to pay to the claimant that sum within 14 days. He did not pay that sum or any part of it. He was ordered at some stage last year, after the claimant obtained judgment, to attend at Worthing County Court on 10th January 2003 to provide information about his means and any other information needed to enforce the judgment or order. He was also ordered to produce at court all documents in his control which related to his means of paying the amount due and to answer on oath all questions which the court asked.
On 10th January 2003 Mr Beamish did not attend at Worthing County Court. On 15th January His Honour Judge Anthony, at a hearing at which Mr Beamish did not attend, found him guilty of contempt by disobeying the order of 21st May 2002. He was committed to prison for 14 days, that order being suspended so long as he attended court on 25th April 2003 and complied with the earlier order.
On 25th April 2003 Mr Beamish did attend court. The court record of the examination showed the answers which Mr Beamish gave to a number of questions. When asked whether he had any bank, building society or other accounts, he answered that he had a current bank account with the National Westminster Bank ("the Bank") at its Chichester branch, and he did not know the account number. The balance was £3,112.73, to which the court officer receiving the answers had added the comment "Mini statements seen". They were in fact bank withdrawal slips showing the balance in the account after the withdrawal. Mr Beamish further said that the account was in his sole name. Mr Beamish also referred to two other accounts, one with the Woolwich and the other with the Alliance & Leicester, both in his sole name and both with credit balances.
He certified that the record was a correct record of the answers which he gave to the questions in the document. The record does not in fact refer to the answers as having been given on oath. The judge certainly treated the answers as having been given on oath and, as I have said, when required to attend he was told he would be required to answer on oath the questions asked by the court. The position is not clear as to whether or not the answers he gave were on oath, but the court has been told by Mr Gourlay, a director of the claimant, that Mr Beamish in fact did give his answers on oath. At the foot of the penultimate page of the record of examination was written in manuscript:
"Mr Beamish to supply to the court within 14 days copies of…"
Then three documents are mentioned, of which the second is the most relevant:
"2. Copy most recent bank statement."
The requirement to produce the three documents was referred to in an order made on 5th June 2003 by His Honour Judge Bennett QC, who appears to have considered the matter on the papers. He found Mr Beamish guilty of contempt of court in disobeying the order of 25th April 2003. That judge committed Mr Beamish to prison for 14 days. The order was suspended, so long as he attended court on 26th June and complied with the order of 25th April by producing the three documents. On 23rd June 2003 Mr Beamish wrote a letter to the court. It purported to deal with the three documents which he had been required to produce. I need only refer to paragraph 2 of that letter:
"Please find enclosed my bank statements from April 2003 to June 2003 as requested."
Those were not bank statements. They were the so-called "mini-statements" or bank withdrawal slips.
The claimant applied for a third party debt order in respect of the account with the Bank to which Mr Beamish had referred in his answers on 25th April 2000. By 26th June the amount owing under the judgment debt had risen to over £8,000. An interim third party debt order was made against Mr Beamish on 26th June 2003, and 7th August was fixed for the hearing date when the court would consider whether to make a final order.
On 27th June 2003 the parent company of the Bank wrote to the court to say that the Bank had no account in the name of Mr Beamish. In consequence, on 1st July the interim third party order was discharged and the hearing on 7th August vacated.
On 9th July Judge Kennedy, of his own motion, reviewed the documents which had been filed, and he made a direction that Mr Beamish attend before him at 12.30 pm on 11th July:
"… to explain the evidence given on oath about his account with [the Bank] in Chichester in view of the information contained in the letter attached and to produce all documents in his possession relating to the said account and his accounts with Woolwich Plc and Alliance & Leicester Plc for the period from 1 July 2002 to date."
The direction contained a penal notice. It gave permission to serve the direction on short notice.
Mr Beamish received the direction the same day. He wrote to the court that day, saying that the letter said to have been attached was not attached and that he could not attend on 11th July. He said he was willing to supply "the copy statements which have been requested by the claimants", but he asked for a few days to collate and copy them. He asked for an adjournment of the hearing fixed for 11th July.
That was not granted. Mr Beamish appeared before the judge on 11th July. We now have a transcript of what occurred. The claimant was not represented nor did he appear. The claimant does not appear to have been notified of the hearing. Mr Beamish was there in person with no legal representative.
The transcript shows that the judge asked Mr Beamish a number of questions. The transcript is in two parts in effect: one when Mr Beamish was not on oath and the other when he was invited to give evidence on oath. The judge asked questions relating to Mr Beamish's account with the Bank and a letter, which the judge said had been sent in by Mr Beamish —that must be the letter dated 23rd June 2003 to which I have already made reference —enclosing the "mini-statements". The judge asked him about that account. Mr Beamish said that he was running a certain amount of business through that account. When asked by the judge what was the account number, Mr Beamish said that he had not got it on him and he did not know that he needed to bring it with him. There then followed this exchange:
THE JUDGE: "Mr Beamish, I suggest you stop trying to impress on me that you cannot read and cannot think sensibly because —
MR BEAMISH: I'm sorry, I didn't mean to give that impression, sir.
THE JUDGE: Well, you are trying to give it but it is not succeeding."
The judge asked further questions about the account, Mr Beamish saying that he used to have an account with the Bank. The judge referred Mr Beamish to what he had said on 25th April 2002, and then there followed this exchange:
THE JUDGE: "… Why did you mislead the court?
MR BEAMISH: Well, I didn't do it intentionally. I had an account there and I didn't, I didn't quite understand, I suppose.
THE JUDGE: I do not believe you, Mr Beamish."
At that point Mr Beamish was invited by the judge to go on oath, and Mr Beamish agreed. After being sworn, the judge then asked further questions. All this occurred without the judge cautioning Mr Beamish against self-incrimination. The judge examined Mr Beamish further about the account. Mr Beamish said that on 25th April 2002, as far as he was aware, he had an account with the Bank and was trying to sort out a problem with it. He was asked about the "mini statements" and said that he had used a bank card to withdraw cash from the account which was in his wife's name. The judge asked why Mr Beamish misled the court. Mr Beamish said that it was not deliberate. There then followed this exchange:
Q. You are playing games. Stop it. Is that clear?
A. Yes, sir.
Q. Do you know that for a refusal to answer questions properly or a refusal to produce documents or for refusing to give the court information that it is entitled to have under this procedure I can commit you to prison for contempt?
A. No, I sincerely hope not, sir.
Q. To the contrary, I can. Do you know that what you told the court on 25th April, assuming as I do that it was deliberate, is perjury?
A. It, well, I—
Q. Do you know what—
A. Please may I say something, sir?
Q. You had better just answer my questions first?
A. Sorry.
Q. So that you do not dig yourself in any deeper. Do I make myself clear?
A. You did, sir.
Q. Right? Do you know what the penalty for perjury is?
A. I'm not familiar, sir."
Then the judge told Mr Beamish what was the maximum penalty for contempt of court.
The judge then informed Mr Beamish of what the judge himself had done to obtain information. The judge...
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...v Nicholls [1997] 1 WLR 314 at 326, cited in e.g. Re M (A Minor) at para 31; Amberley Construction Limited v Beamish [2003] EWCA Civ 1267 at para 27; Medina Housing Association Ltd v Connolly [2002] EWCA Civ 1263 at para 29. Statutory amendments to the Children Act 1989 now empower English ......