Broomleigh Housing Association Ltd v Okonkwo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath |
| Judgment Date | 13 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1113 |
| Docket Number | Case No: B2/2009/1122 & 1123 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2010 |
[2010] EWCA Civ 1113
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
His Honour Judge Ellis
Before: Lord Justice Carnwath
Lord Justice Moore-Bick
and
Lord Justice Wilson
Case No: B2/2009/1122 & 1123
(4CR21513)
Mr. Christopher Jacobs (instructed by Hodge Jones & Allen LLP) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 30 th June 2010
Lord Justice Moore-Bick and Lord Justice Wilson:
The power to commit a person to prison for contempt is one of the most powerful sanctions available to the court to punish those who flout its authority and to compel compliance in the future. Since it involves an interference with the liberty of the subject it is a power which is exercised with care and only in cases where disobedience is intentional and where in all the circumstances the order is appropriate. Sometimes the order is suspended on condition that the defendant does not disobey again. This appeal raises an important question about the power to commit in circumstances where the evidence before the court is not such as to justify its exercise by reference to general principles, but where a suspended order of committal is nevertheless seen as an effective way in which to ensure future obedience to a separate order.
The circumstances giving rise to the appeal are in many respects not unusual. The appellant, Mr. Emeka Okonkwo, is the tenant of 6 Norfolk House, 40 Croydon Road, Penge, a property owned and managed by the respondent, Broomleigh Housing Association (“the Association”). Since 1999 the Association has made three claims for possession against Mr. Okonkwo, each of which was ultimately withdrawn on terms that he pay its costs amounting to £120.00, £155.25 and £166.43 respectively. The most recent of those orders was made on 30 th April 2004. None of the orders for costs has been satisfied.
On 23 rd May 2005 the Association applied to Croydon County Court for an order that Mr. Okonkwo attend for questioning about his means and provide information needed to enforce the order made on 30 th April 2004. Attached to the application was a list of additional questions that the Association wished the court to ask Mr. Okonkwo relating to other properties in South East London. On 8 th June 2005 an order was made for Mr. Okonkwo to attend the court for questioning on 2 nd August 2005. However, the Association failed to serve the papers on Mr. Okonkwo and the matter was adjourned. On 22 nd August 2005 the court made an order for him to attend on 21 st September 2005. It is not clear why the matter was not dealt with on that date, but a further order was made on 5 th October 2005 for him to attend on 12 th January 2006. Mr. Okonkwo failed to attend, but that is not surprising because on 10 th March 2006 the Association wrote to the court saying that the order had not been served on him and asking for the case to be re-listed. As a result another order was made on 7 th March for Mr. Okonkwo to attend on 3 rd May 2006. On 2 nd May 2006 the Association wrote to the court again saying that it had been unable to serve the order on Mr. Okonkwo and asked for it to be reissued for a new date.
On 3 rd May 2006 the court made another order directing Mr. Okonkwo to attend for questioning on 5 th July. On 20 th July the court wrote to the Association informing it that Mr. Okonkwo had failed to attend and asking how it wished to proceed. In its reply dated 31 st August 2006 the solicitors acting for the Association said that they were unable to prove that he had been served with the order of 3 rd May; they said they would try again. Another order was made for Mr. Okonkwo to attend on 22 nd November 2006.
The Association continued to have difficulty in serving Mr. Okonkwo. On 3 rd November 2006 Mr. Richard Cunningham, a housing officer employed by the Association, made an affidavit in which he said that on 25 th October 2006 he had approached Mr. Okonkwo outside the court and had served him with a copy of the order. In a statement made for the purposes of these proceedings, however, Mr. Okonkwo says that Mr. Cunningham merely thrust a document towards him which fell to the ground and that he was not sent any other copy of the order. At all events, Mr. Okonkwo failed to attend court on 22 nd November 2006 and on 11 th December 2006 Judge Ellis made an order committing him to prison for 7 days, but suspended it so long as he attended court on 13 th March 2007. This was the first suspended committal order made against Mr. Okonkwo but it is not a subject of the appeal. Later Mr. Okonkwo spoke to the court manager. He told her that he had not received the order of 3 rd May and needed more time to assemble the material he needed to answer questions about his means. It was agreed that he would be given more time and on 19 th March 2007 an order was made adjourning the hearing to 24 th April 2007.
On 5 th April Mr. Okonkwo wrote to the court acknowledging receipt of the order made on 19 th March. He said that he would be unable to compile the necessary documents as quickly as he had expected and would be unable to cope with his affairs for the next six weeks due to illness. He therefore asked the court to fix another date for his attendance not before 31 st May. On 20 th and 25 th April 2007 Mr. Okonkwo wrote to the court asking what the position was. The papers, including his letter, had by that time been placed before the judge for a decision. The judge decided that the hearing should not be further adjourned, but unfortunately the court did not reply to Mr. Okonkwo's letters until 24 th May. He did not attend on 24 th April, but since the Association had failed to file an affidavit of service of the order of 19 th March, the court felt unable to take any further steps at that stage.
On 8 th August 2007 the Association issued a fresh application for an order that Mr. Okonkwo attend for questioning and on 15 th August an order was made for him to attend on 27 th November 2007. It was served on him by Mr. Andrew Mackay, another of the Association's housing officers, on 17 th September. On 26 th November 2007 Mr. Okonkwo wrote a letter to the court saying that he had not been able to complete the financial information required to conduct the questioning and asking that the hearing be put back until after the end of February 2008. However, he attended court on 27 th November taking the letter with him and was seen by Ms. Cattle, the officer who was expecting to conduct the questioning, to whom he gave it. It is not entirely clear exactly what then occurred, but the questioning did not proceed. According to Mr. Okonkwo, Ms. Cattle was annoyed and said that she would put the letter before the judge. Mr. Okonkwo says that he heard nothing further from the court or the Association.
Following her conversation with Mr. Okonkwo, Ms. Cattle completed a document entitled “Record of examination” (Form EX140). She entered no record of any answers to questions (since there were none), but added in the certificate box the following words:
“He attended but stated he needed more time before he could fill in form (see letter).”
The next day another officer of the court, Mrs. Friend, completed a Reference to Judge (Form EX142) certifying that Mr. Okonkwo had attended court pursuant to the order of 15 th August 2007 but had “refused” to answer any questions. On 30 th November 2007 Judge Ellis made an order committing Mr. Okonkwo to prison for 7 days, suspended so long as he attended court at a time and place to be fixed by a court officer. The reasons given for making the order were that Mr. Okonkwo had not requested payment of his travelling expenses and that, having attended court, he refused to answer any question. The judge made his order by way of annotation at the foot of the Reference to Judge form which had been completed by Mrs Friend; but a formal order was then drawn in Form N79A for service on Mr. Okonkwo. This is the second suspended committal order made against Mr. Okonkwo and is the first of the two orders under appeal.
The term of suspension was that Mr. Okonkwo should attend court again on 21 st February 2008, but he failed to do so. He says that he was not made aware of the order and shortly afterwards the Association accepted that it had failed to serve it on him. It appears from correspondence that on 24 th September 2008 a third suspended committal order was made for Mr. Okonkwo to attend court for questioning, this time on 8 th January 2009. This third suspended committal order, a copy of which has not been made available to this court, is not a subject of any appeal. Despite the fact that the court had expressly drawn the Association's attention in correspondence to the need to serve Mr. Okonkwo personally with the order not less than 14 days before the date fixed for his questioning, it appears that it failed to do so. He was therefore unaware of the steps being taken to require his attendance. When that became apparent the Association's solicitors asked for the matter to be relisted as soon as possible and on 12 th February 2009 Judge Ellis made a fresh order committing Mr. Okonkwo to prison for 7 days, suspended so long as he attended court on 5 th May 2009 and complied with the order made on 15 th August 2007. No reasons for making the order were given other than the bare facts that he had not requested payment of his travelling expenses and had (so it was said) failed to attend on 27 th November 2007....
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