Ashford Borough Council (for and on behalf of itself, its current and former officers, employees, councillors and agents) v Mr Fergus Wilson

Hearing date: 12 th March 2024

Approved Judgment

His Honour Judge Antony Dunne (sitting as a Judge of the High Court):

Introduction

On 12 ^th February 2024 the Claimants made an application to commit the Defendant for contempt of court. They allege that the Defendant has, on 44 occasions, breached a final injunction order imposed on the Defendant on 22 ^nd September 2021. These allegations are contained within the Claimants' schedule of breaches of injunction.

On 12 ^th March 2024 I conducted a trial to determine whether the Defendant had breached the injunction order and was therefore in contempt of court. This judgment contains my written findings as required by CPR 81.4.

The parties

The First Claimant is Ashford Borough Council (hereafter “ABC”). ABC is a local authority in Kent responsible for the borough of Ashford. The second Claimant is Mrs Tracey Kerly who is ABC's Chief Executive. The Claimants act on behalf of the current and former employees, officers, councillors, and agents of ABC.

The Defendant is Mr Fergus Wilson who was described in the injunction proceedings as a large scale landlord in Kent.

The Injunction

On 22 ^nd September 2021, on the application of the Claimants, a final injunction order was made by Daryl Allen KC sitting as a Deputy High Court Judge.

The terms of the injunction are as follows:

“3. The Defendant is restrained from pursuing a course of conduct which amounts to harassment of the Protected Persons within the meaning of the Act.

AND

4. In particular, the Defendant be restrained from doing, causing, permitting, encouraging or assisting any of the following:

4.1 Threatening, intimidating or otherwise interfering with any Protected Person;

4.2 Posting on social media or the internet about Protected Persons or which is intended to cause alarm, fear or distress;

4.3 Knowingly making:

4.3.1 any communication to any Protected Person whether orally, by telephone, in writing, by facsimile, by email or other electronic means, which shall include for the avoidance of doubt any emails, texts, letters, communication through social media or telephone calls to a Protected Person(s); or

4.3.2 any communication whatsoever to any Protected Person at their private home, or on their private telephones, email addresses or social networking sites.

4.4 Compelling or coercing any Protected Person against his will from doing something he is under no obligation to do or not do something he is entitled to or required to do.

5. This order shall continue indefinitely as a final injunction unless revoked or varied by a Judge of the High Court.

SAVE THAT nothing in this Order shall prevent the Defendant from communicating with the First Claimant in writing, and in a manner which does not harass the Protected Persons, with Mr Terrence Mortimer of the First Claimant (or any other person designated in writing by the First Claimant to the Defendant as a replacement for Mr Mortimer in this role) by post to Civic Centre Tannery Lane, Ashford TN23 1PL or by email to terry.mortimer@ashford.gov.uk (or to any other address or email address designated in writing by the First Claimant to the Defendant as a replacement for those given here).

AND SAVE THAT nothing in this Order shall prevent the Defendant from communicating with the First Claimant in respect of this litigation, in writing, and in a manner which does not harass the Protected Persons, with Mr Terrence Mortimer of the First Claimant (or any other person designated in writing by the First Claimant to the Defendant as a replacement for Mr Mortimer in this role) by post to Civic Centre Tannery Lane, Ashford TN23 1PL or by email to terry.mortimer@ashford.gov.uk (or to any other address or email address designated in writing by the First Claimant to the Defendant as a replacement for those given here).

AND SAVE THAT nothing in this order shall prevent the Defendant from communicating with a former councillor in a non-harassing manner if the Defendant does not know and cannot reasonably be expected to know that they are a former councillor of the First Claimant.”

“Protected Persons” are defined in the injunction order at paragraph 2.4 as:

“2.4 “Protected Persons” shall mean:

2.4.1 the Second Claimant;

2.4.2 the current and former officers, employees, councillors and agents of the First Claimant.”

The injunction order contained a penal notice to the Defendant in the required form.

The injunction order was personally served on the Defendant on 22 ^nd September 2021. Mr Wilson also had the benefit of a direct email from the judge, Mr Darryl Allen KC, on 22 ^nd September 2021 at 17:03 attaching the judgment and the final injunction order and confirming that ‘the date of the injunction is 22 ^nd September 2021 … it is in force with immediate effect. It replaces the interim injunction which was originally issued by HHJ Auerbach’.

There is ample evidence that the Defendant was aware of the injunction. The Defendant appealed the final injunction order and permission to appeal was refused by Warby LJ on 14 ^th July 2022. The Defendant has also been an active participant in the litigation concerning the costs arising from the injunction proceedings. Finally, when giving evidence in these proceedings, the Defendant confirmed he had been served with the final injunction order and had read it.

Fairness of the proceedings — compliance with the requirements of CPR 81.

CPR 81.4 lays down rules for the service and conduct of committal proceedings which are designed to ensure that those proceedings are fair. The Claimants have satisfied the requirements of CPR 81.4 as follows.

(a) The application for committal was supported by the Second Affidavit of Terence Mortimer. The affidavit contained the evidence relied upon by the Claimants in support of its application.

(b) The contempt application form N600 set out the nature of the alleged contempt, namely a breach of the final injunction order. It enclosed the Schedule of Breaches of Injunction which particularised the alleged breaches including the relevant dates and terms. Forty-four breaches were alleged in total.

(c) The Form N600 confirmed the date of personal service of the final injunction order was 22 ^nd September 2021.

(d) The Form N600 confirmed that the final injunction order included a penal notice complying with CPR 81.4(2)(e).

(e) The Schedule of Breaches of Injunction particularised the forty four alleged breaches in chronological order.

(f) The Form N600 confirmed that Mr Wilson has the right to be legally represented in these proceedings, that he is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid (which may be available without a means test), that he may be entitled to an interpreter, that he is entitled to reasonable time to prepare for the hearing, that he is entitled, but not obliged, to give evidence in his defence, that he has the right to remain silent, that the court may proceed in his absence, and the potential punishments if he is found in contempt. The N600 also states that if Mr Wilson admits the contempt and wishes to apologise that is likely to reduce the seriousness of any punishment, that the court's findings will be provided in writing and that the court will sit in public unless and to the extent the court orders otherwise and that the findings will be in public.

(g) The contempt application was personally served on Mr Wilson.

The Hearing on 23rd February 2024

In addition to the information contained within Form N600 a directions hearing was held before HHJ Auerbach, sitting as a Judge of the High Court, on 23 ^rd February 2024. The Defendant attended that hearing and confirmed that: (a) he had been personally served with the contempt application documentation; (b) that he knew he was entitled to legal representation at the hearing on 12 ^th March 2024; (c) that he understood the nature of the 12 ^th March 2024 hearing and that he was liable to be imprisoned and/or fined and/or have his assets seized if he were found guilty of contempt; (d) that he understood that he could not be compelled to give evidence at the hearing on 12 ^th March 2024 and that he had the right not to incriminate himself; (e) that he accepted he was the author of the emails and letters relied upon as evidence by the Claimants and that he did not require Terence Mortimer to give oral evidence but that he denied any of his admitted actions constituted breaches of the final injunction order.

The hearing of 12th March 2024

The Defendant attended the contempt hearing on 12 ^th March 2024 unrepresented. At the start of the hearing the Defendant confirmed that he had been informed of the right to legal representation, but that he wished to represent himself. I reminded the Defendant he was entitled to give evidence in his defence, but that he had the right to remain silent, the right not to incriminate himself and that he could not be compelled to give evidence. I then explained the purpose of the hearing was to determine whether the Defendant had committed any of the alleged breaches of the injunction. I explained that I would make those findings in a written judgment and that if any of the...