Burris v Azadani
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MILLETT,LORD JUSTICE SCHIEMANN |
| Judgment Date | 27 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0727-2 |
| Docket Number | No CCRTF 95/1024/G |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 1995 |
[1995] EWCA Civ J0727-2
On Appeal from Order of His Honour Judge Copley
Before: The Master of the Rolls Lord Justice Millett Lord Justice Schiemann
No CCRTF 95/1024/G
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
MR RICHARD BATES (Instructed by Hornby & Levy) for the defendant.
MR TIMOTHY LAWSON-CRUTTENDEN, Solicitor (Instructed by Dawson Cornwell & Co) for the plaintiff.
(As Approved)
THE MASTER OF THE ROLLS Mr Behrooz Azadani, the appellant in this court, was the subject of an injunction granted in ordinary common law proceedings by the County Court. One of the terms of that injunction was that he should not go within 250 yards of a specified address. He did so. The breach was proved and he was committed to prison. He submits on this appeal that the term in question was one which the judge was not entitled to impose or should not have imposed. He seeks to be released from prison on one or other of those grounds.
Miss Burris is a divorced woman living with her two children, now aged about 10 and 8, at 83 Mandrake Road, London SW17. In September 1992 she and her children began to attend classes in martial arts at the Balham Leisure Centre. Mr Azadani was one of their instructors and they became acquainted with him in that way. Mr Azadani sought a close and intimate relationship with Miss Burris. This was something she did not want and did her best to resist. Unfortunately, Mr Azadani was unwilling to respect her wishes. He made a number of uninvited visits to her house, often in the middle of the night, and refused to leave. He made nuisance telephone calls to her on repeated occasions. He made threats to commit suicide and threats against her. He also made threats to slash the tyres of her car, and the tyres of her car were thereafter slashed, although she cannot state positively that he was responsible. She was understandably very worried about the safety of her children and herself. It is unnecessary to recite the history which gave rise to the proceedings in detail, since there has been no dispute concerning Miss Burris's account, which discloses an intolerable history of harassment and molestation.
On 28 January 1994 Miss Burris applied ex parte to the district judge at Wandsworth County Court for grant of an interlocutory injunction. Her application was supported by an affidavit of the same date, exhibiting a summary of the history on which she relied. It is evident that the application was made in some haste, and no proceedings had at that stage been issued.
On Miss Burris's undertaking to file particulars of claim within 7 days leave was given to issue a summons. An injunction was also granted in these terms:
"That the defendant be restrained and an injunction is hereby granted restraining the defendant whether by himself, his servants or agents or any of them, or otherwise howsoever from: -
(a)Assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff whether directly or indirectly to the [plaintiff, the plaintiff's children and the plaintiff's friend].
(b)Making any communication to the plaintiff, the plaintiff's [children and the plaintiff's friend] whether in writing or orally, whether by telephone or otherwise howsoever save that he may send written communication to her solicitors;
(c)From coming or remaining with [in] 250 yards of the plaintiff's home address of 83 Mandrake Road, London SW17 7PX until after the trial of this action or further order."
Mr Azadani was given liberty to apply to discharge or vary that order on 3 days' written notice to Miss Burris's solicitors, but he took no steps to make application. The order was to remain in force until the trial of the action or further order. It was duly served on Mr Azadani.
It was alleged that Mr Azadani breached this order by visiting 83 Mandrake Road. On one occasion he was said to have taped (or caused to be taped) a letter and three dead roses to Miss Burris's front door. On a second occasion he was said to have delivered a letter by pushing it through her letterbox. These alleged breaches came before a recorder sitting in the Wandsworth County Court. The recorder made no order on that occasion, but reprimanded Mr Azadani and warned him that if further breaches occurred he was at risk of being sent to prison.
For a time it seems that Mr Azadani complied with the terms of the injunction. But on 26 April 1995 he appeared before His Honour Judge Walker in the Wandsworth County Court and a number of breaches of the injunction were proved. Two of those breaches were those which had earlier been considered by the recorder. The remainder involved: a call at Miss Burris's house by Mr Azadani's sister on 18 December 1994; the delivery (by an agent) of a cassette containing allegations by Mr Azadani against Miss Burris on 26 December 1994; the leaving of messages on Miss Burris's answerphone in January and February of 1995 and the posting of a letter through her letterbox; and a visit by Mr Azadani to Miss Burris's house on 4 April 1995, when he put a note through the letterbox and left parcels on the doorstep for Miss Burris's children. The judge found all these breaches to be proved, and ordered that Mr Azadani be committed to prison for 8 weeks for each of the breaches. These sentences were ordered to be concurrent, and the sentences were suspended until 26 October 1996.
Unfortunately for Mr Azadani, further breaches were alleged against him. These were investigated by His Honour Judge Copley at Wandsworth County Court on 12 July 1995. The first alleged breach was that at 7.30am on 6 July 1995 Mr Azadani had cycled along Mandrake Road past Miss Burris's house (and therefore within 250 yards of it). The second alleged breach was that at 00.42am on 7 July 1995 Mr Azadani had again cycled along Mandrake Road past Miss Burris's house. On neither occasion did Miss Burris see Mr Azadani herself, and at the trial Mr Azadani contended that he had not been in Mandrake Road at the times of these alleged visits. There was, however, evidence to support Miss Burris's complaint, and the judge found the breaches proved. He found as a fact that when told of Mr Azadani's presence outside her house Miss Burris had been so frightened that she shook physically. The judge ordered Mr Azadani to be committed to prison for 4 weeks for each of these two breaches (concurrently), and also ordered that he should serve the suspended sentence of 8 weeks. Mr Azadani therefore became subject to an immediate sentence of 12 weeks' imprisonment.
Before Judge Copley it was argued that the district judge had had no power to impose the 250 yard term in the injunction which he granted on 28 January 1994, and that therefore there was no jurisdiction to commit Mr Azadani to prison for breach of that term. The judge rejected that argument. It is, however, clear that whereas the earlier breaches complained of had been clear breaches of terms (a) and (b) of the injunction of 28 January 1994, the breaches of which Mr Azadani was found guilty by Judge Copley related only to term (c) of the injunction. That was what gave force to the argument which was deployed before Judge Copley, and which has to some extent been repeated in this court.
Counsel for Mr Azadani naturally relied strongly on the commentary on Order 13 rule 6 of the County Court Rules to be found in the 1995 County Court Practice at page 237:
"There is no power at common law to grant an injunction restraining a defendant from entering an "exclusion zone" outside the plaintiff's premises even where the action is for trespass coupled with a claim for an injunction against molestation: Patel v Patel [1988] 2 FLR 179, [1988] Fam Law 213, CA."
This statement was fortified by a passage in Emergency Remedies and Procedures, Second Edition, by Judge Nigel Fricker QC and others:
" Orders to exclude the defendant from an area surrounding the plaintiff's home are not available
In Patel v Patel [1988] 2 FLR 179, the Court of Appeal approved the deletion from an injunction of an order excluding the defendant from an area surrounding the plaintiff's premises. It is submitted that, apart from the statutory power to make an exclusion order in relation to a spouse or co-habitant, provided by section 1 (1)(d) of the Domestic Violence and Matrimonial Proceedings Act 1976, there is no jurisdiction to grant an injunction to restrain a defendant from exercising a public right of way or peacefully visiting premises to which he is invited, however close to the home of the plaintiff or applicant the highway or premises may be. See also Pidduck v Molloy."
It is plain that respected authorities regard "exclusion zone" terms, save where specifically authorised by statute, as impermissible.
Section 38 of the County Courts Act 1984 provides:
"(1)Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court".
The County Court Remedies Regulations 1991 restrict the grant of Anton Piller orders and Mareva injunctions by county courts, but otherwise the power of the county court to grant an interlocutory injunction is the same as that of the High Court. The power of the High Court is found in section 37 (1) of the Supreme Court Act 1981, which provides:
"(1)The High Court may by order (whether interlocutory or final) grant an injunction …. in all cases in which it appears to the court to be just and convenient to do so".
It is of course quite clear that the...
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