Bell v Tuohy and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mantell,Lord Justice Kennedy |
| Judgment Date | 27 March 2002 |
| Neutral Citation | [2002] EWCA Civ 423 |
| Docket Number | Case No: B2/2001/2507 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2002 |
[2002] EWCA Civ 423
Lord Justice Kennedy
Lord Justice Mantell and
Mr. Justice Neuberger
Case No: B2/2001/2507
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE MARSHALL EVANS QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Graham Wood(instructed by Cobley's Solicitors of Liverpool) for the Appellants
Graham Sellers (instructed by Brabners Chaffe Street Solicitors of Liverpool) for the Respondent
Mr Justice Neuberger:
This is an appeal by Mr Robert Tuohy, against an order made by His Honour Judge Marshall Evans QC in the Liverpool County Court on 5 th November 2001, committing Mr Tuohy to prison for contempt of court for a period of seven days.
The facts
Mr and Mrs Tuohy started living at 25C St Andrew's Gardens, Liverpool ("the premises") in about 1976. They were both declared bankrupt in 2000. As a consequence, their interest in the premises vested in their Trustee in Bankruptcy, Mr Gary Bell, pursuant to section 306 of the Insolvency Act 1986. The Trustee asked Mr and Mrs Tuohy to give him possession of the premises, so that he could sell the premises with a view to the proceeds of sale being distributed to their creditors. However, they refused to vacate, and the Trustee applied to the Liverpool County Court for an order for sale and an order for possession.
On 11 th July 2001, District Judge Sykes made an order for the sale of the premises with vacant possession, and she also ordered that Mr and Mrs Tuohy "deliver up possession of the [premises] to the Trustee on or before 11 th October 2001". Because the Trustee anticipated that Mr and Mrs Tuohy would not in fact vacate, his solicitor applied to the Liverpool County Court for a warrant for possession on 14 th August 2001, in the appropriate Form, N325, Request for Warrant for Possession of Land, apparently after discussing the matter with Miss Cooper, a member of the court staff.
An officially sealed warrant for possession in the appropriate form, Form N49, Warrant for Possession of Land, was issued, apparently the following day, 15 th August 2001. On 3 rd October 2001, Mr and Mrs Tuohy made an application to suspend the Warrant. That application was dismissed on 10 th October by District Judge Smedley. (An appeal was launched, but it was dismissed on 20 th November, and no stay was applied for or granted in the meantime).
On 15 th October 2001, three County Court Bailiffs, two Police Officers, a locksmith and an observer attended at the premises to execute the Warrant. Although Mr and Mrs Tuohy were at home, they refused to let the Bailiffs into the premises. Mr Tuohy was told by one of the Bailiffs that his failure to give up possession would result in an application for his committal to prison because of his failure to comply with the order for possession and because he was impeding the Bailiffs. Although possession was not obtained on 15 th October, because of Mr and Mrs Tuohy's refusal to leave the premises or to afford the Bailiffs entry, Mrs Tuohy moved out shortly thereafter.
On the same day as the failed attempt to execute the Warrant, 15 th October, the Trustee applied in the County Court for the committal of Mr and Mrs Tuohy "for contempt of court because they have refused to comply with the Court's order of 11 th July 2001 and have refused to comply with the Warrant for Possession when Bailiffs attempted to execute the Warrant on 15 th October 2001". The application came before Judge Marshall Evans QC on 22 nd October, and he decided to adjourn the application to 5 th November. This was partly because the application was supported by witness statements, rather than by affidavits, as required by paragraph 3.1 of the Practice Direction—Committal Applications.
However, the Judge's decision to adjourn the application was also influenced by the fact that, although they were present in Court, Mr and Mrs Tuohy were not legally represented. The Judge took the opportunity to tell Mr Tuohy that the order for possession was an order of the Court which was to be obeyed. The Judge also explained to Mr Tuohy in clear terms that failure to comply with the order could result in penalties, including committal to prison.
At the adjourned hearing of the contempt application on 5 th November 2001, Mr and Mrs Tuohy were represented by counsel. The Judge read the affidavits, heard some evidence from Mr Tuohy, and entertained argument from counsel for the Trustee and for Mr and Mrs Tuohy. He accepted that there were various defects in the application, but he was of the view that he could and should waive them. He decided not to make any order against Mrs Tuohy on the basis she had moved out of the premises and "her present position is co-operative". He therefore adjourned the application against her.
However, the Judge decided to commit Mr Tuohy to prison for seven days on the basis of Mr Tuohy's contempt. He concluded that he was entitled to commit Mr Tuohy to prison for contempt for three reasons. The first reason was Mr Tuohy's failure to comply with the order of 11 th July; the second was Mr Tuohy's failure to co-operate with the Bailiffs on 15 th October; the third reason was Mr Tuohy's patent refusal in open court on the 5 th November to comply with the order of 11 th July. In connection with this last reason, Mr Tuohy said at that hearing: "I am not willing to comply with the order of the Court. I won't leave unless I am thrown out… or sent to prison. …That is my carefully considered and final decision".
Having satisfied himself that he had jurisdiction to commit Mr Tuohy to prison, the Judge decided that it was appropriate to do so, albeit only for seven days. He described this as "a short period which will give an opportunity for possession to be taken peacefully" and "the best solution to the problem". He emphasised that there was no question of "vengeance" and that the purpose of the committal was "merely to see that the Order is obeyed". In the event, Mr Tuohy served one and a half days in prison, during which time the order for possession was executed.
Mr Tuohy now appeals against the decision to commit him to prison, contending that each of the three grounds relied on by the Judge were flawed, and did not justify his imprisonment. I propose to consider first the impeding of the execution of the Warrant.
Contempt and the Warrant for Possession
Impeding a Bailiff of the County Court in executing a warrant can lead to prosecution by virtue of the provisions of section 10 of the Criminal Law Act 1977. That does not of itself mean that it constitutes civil contempt, nor, indeed, does it mean that it could not constitute civil contempt—see Szczepanski v Szczepanski (1985) 15 Fam Law 120. Indeed, that case shows that a civil court can deal with a contempt where it is appropriate to do so (as the Judge thought here) even if there is a risk of criminal proceedings.
A warrant for possession is not addressed to a defendant or any other person in occupation of premises: it is issued out of the County Court Office "to the District Judge and the Bailiffs of the Court". Accordingly, as pointed out by Mantell LJ, it cannot be said that, by failing to comply with a warrant for possession of certain property, a person in occupation of the property is refusing to comply with a court order directed to him or served on him. However, at least in the absence of authority, it would seem to me pretty clear that impeding an officer of the court who is in the course of lawfully executing an order of the court, which is what a Bailiff is doing when executing a lawful warrant for possession, would constitute contempt of court, at least where the person concerned knows or clearly ought to know that what he is impeding is the proper execution of an order of the court.
There is relatively limited authority on the topic. In two cases, it has been held that, where an order for possession has been made in the High Court and has been executed through the medium of a writ of possession, a defendant who subsequently breaks back into the premises is in contempt of court. In Lacon v de Groat (1893) 10 TLR 24 at 24, Pollock B said this:
"Whenever the writ being put in force, the defendant… does not fully and honestly give up possession but only colourably does so the Judge applied to may and ought to find that the process of the court has not been obeyed and that there has been a contempt of court."
This observation was quoted and applied by Roxburgh J in Alliance Building Society v Austen [1951] 2 All ER 1068.
While each of those two cases was concerned with a writ of possession in the High Court, which was, as it were, subsequently thwarted, it seems to me that they support the proposition that obstruction of a Bailiff seeking to execute an order for possession, pursuant to a lawful warrant for possession, would constitute a contempt. Nonetheless, as was emphasised in Alliance at [1952] 2 All ER 1069 G, the contempt procedure should be invoked very rarely in such a context, a view supported by subsequent observations of the Court of Appeal in — Danchevsky v Danchevsky [1975] Fam 17.
The point relied on by Mr Tuohy in support of his contention that he was not in contempt by impeding the execution, is that the Warrant was invalid. This is on the basis that it is only possible for a claimant, with the benefit of an order for possession in the County Court, to apply for a warrant for possession after the order for possession has taken effect (i.e., in this case,...
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