Dean v Dean
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE NEILL |
| Judgment Date | 10 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1110-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/1001 |
| Date | 10 November 1986 |
[1986] EWCA Civ J1110-1
Lord Justice Dillon
Lord Justice Stephen Brown
Lord Justice Neill
86/1001
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PETERBOROUGH COUNTY COURT
(MR ASSISTANT RECORDER HALL)
Royal Courts of Justice
MR J.L. MUNBY and MR PETER STARCEVIC, instructed by Messrs Hegarty & Co. (Peterborough), appeared for the Appellant (Respondent).
MR PAUL RIPPON, instructed by Messrs Ward Gethin & Co. (Peterborough), appeared for the Respondent (Petitioner).
This is an appeal by Mr Shane Bruce Arnold Dean against an order made by Mr Assistant Recorder Hall in the Peterborough County Court on 30th October 1986 whereby he committed the appellant to prison for three months for contempt of court. The appellant was taken into custody that day and has been in prison ever since.
The matter arose in matrimonial proceedings brought against Mr Dean by his wife, Mrs Susan Dean, the respondent to the appeal. The marriage, unfortunately, was of short duration. They were married on 19th July 1985. One child was born on 28th January 1986. They lived together at a property near Peterborough—No. 99 Leighton, Orton Malborne, near Peterborough—until 19th August this year when the respondent left, taking the child with her, and she presented a divorce petition on 27th August seeking dissolution of the marriage on the ground of unreasonable conduct.
The appellant gave undertakings to the court on 4th September not to assault, molest or otherwise interfere with the respondent or the child, and to vacate the property, No. 102, Leighton, by noon on 5th September and not to return thereto for the purposes of residence. These undertakings were given until decree absolute or further order. The appellant left the property in a filthy condition on 5th September and had also taken various steps to sell or give away the contents. The judge found that the property was then in a state of disgusting dishevelment. Therefore, when the appellant left it was not fit for the respondent to occupy.
The appellant did indeed leave on the 5th, and the judge accepted that he did not then intend to return, but he did return, as the judge found, on 9th September, by which time its condition had been improved by the efforts of the respondent and her brother; it had been cleaned up to a considerable extent. He remained in occupation until 24th September.
Against that background the notice of motion for committal was launched, and that contained three counts of alleged contempt. Firstly, it was alleged that, since 5th September, namely, on the 9th and on the days immediately succeeding that, the appellant had returned to the property and resided there until on or about 24th September. Secondly, it was alleged that on or about 21st September the appellant, knowing well that the respondent was seeking to take up residence at the property, wilfully damaged the electrical wiring and installations thereof and removed certain doors, that is to say, the internal doors of the lounge, the main bedroom and the bathroom. Thirdly, it was alleged that after 24th September, when the responent had returned to the property, the appellant had persistently and deliberately peered through the windows of the property with the intention of harrassing and distressing the respondent.
I will come back to the details of those charges later. The history of the proceedings was that the motion for contempt was listed for hearing on 23rd October together with a summons by the wife, the respondent, seeking an order requiring the present appellant to return various chattels to the respondent in the property. That point about the chattels was dealt with on the 23rd. Because of shortage of time the committal application was adjourned and dealt with on the 30th, and the learned recorder made the order which I have indicated committing the appellant to prison for three months.
The problem that is raised in this appeal comes about because it so happened that there was a decision in relation to contempt of Mr Justice Hutchison in a case of West Oxfordshire District Council v. Beratec Ltd, which was briefly reported in the Times Newspaper of that very day, 30th October. The learned recorder's attention was drawn to that report, and he said in his judgment:
"The required standard of proof in contempt cases is that stated in West Oxfordshire District Council v. Beratec Limited reported in the Times on 30th October 1986. The correct standard of proof is the civil standard, that is the evidence must be cogent and convincing."
We have had put before us the Times report of the judgment of Mr Justice Hutchison and also an extract from the full transcript. The report sets out that the correct standard of proof to be applied in proceedings in relation to the breach of an undertaking given to the court was the civil standard, namely, proof on the balance of probabilities, but the court should not regard that burden as having been discharged unless the evidence adduced had been cogent and convincing. That is a correct summary by the reporter of what Mr Justice Hutchison said in his judgment. There he set out that in the case before him, which was concerned with an application for sequestration of the assets of a company for contempt in a matter of nuisance, there had been a dispute between counsel as to what was the relevant standard of proof for the plaintiffs to discharge in proving breach of an undertaking. Counsel for the defendants had urged that the rule was that the criminal standard of proof applied, whereas counsel for the plaintiffs had urged that all that was required was proof on the balance of probabilities, subject to the qualification that the more serious the allegation sought to be proved and the more dire the consequences to the defendant if it were proved, the more cogent and convincing would be the evidence that the court required before finding against the defendant.
Mr Justice Hutchison adopted the latter view and founded himself on observations by Lord Scarman in the immigration case of Khawaja [1984] A.C. 74. The matter which seems to have weighed with Mr Justice Hutchison in his decision was that he regarded an application for committal for civil contempt as a civil matter and not a criminal matter, and he applied Lord Scarman's statement, on an application for judicial review of a decision in an immigration case, as governing the criterion he should apply. Lord Scarman had there said:
"There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."
We have in this court to consider two aspects of the case. Firstly, was Mr Justice Hutchison right or not? If he was not right, then the passage which I have read from the judgment of the recorder in the present case was a misdirection. The second question we then have to consider is what is the consequence of that misdirection on the three counts and the sentence for them passed on the present appellant?
It is to be noted that a week later, on 5th November, the Times reported a decision of Mr Justice Potts in the case of Deborah Building Equipment Ltd. v. Scaffco Ltd., where Mr Justice Potts, differing from Mr Justice Hutchison, held that the criminal standard of proof was the appropriate standard of proof on an application for committal for civil contempt of court.
So far as the point of law is concerned, it has long been the view that proceedings for civil contempt of court are not ordinary civil proceedings. In the case of Danchevsky v. Danchevsky (No. 2), decided on 10th November 1977, Lord Justice Lawton pointed out that contempt of court is a common law misdemeanour and the criminal nature of the charge has been taken into account many times. The case usually referred to as establishing this is the decision of this court in Re Bramblevale Ltd. [1970] Ch. 128. There Lord Denning M.R. said (at page 137A):
"A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt."
In the same case Lord Justice Cross observed:
"From the...
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