Duo v Osborne (formerly Duo)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE LEGGATT |
| Judgment Date | 02 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0402-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0331 |
| Date | 02 April 1992 |
[1992] EWCA Civ J0402-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE RICE)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Butler-Sloss
Lord Justice Leggatt
92/0331
MISS BARARA PHILCOX (instructed by Messrs. Twitchen Musters & Kelly, Southend) appeared for the Appellant.
MR. MICHAEL STERN (instructed by Messrs. Beecham Fisher & Partners, Southend) appeared for the Respondent.
This is an appeal against an order of His Honour Judge Rice in the Southend County Court, made on 13th March of this year committing Mr. Dominic Duo to prison for six months for contempt of court. The relief sought is that the sentence of imprisonment be set aside, he having served 13 days in prison or, alternatively, that it be varied or, alternatively, that a new hearing be ordered. Mr. Duo is at present on bail pursuant to an order made by this court last week.
The complainant, Mrs. Osborne, was formerly the wife of Mr. Duo, the marriage having been dissolved on 2nd October 1991. On 16th May 1991 various orders were made against Mr. Duo. They were, first, that he should not use any violence against Mrs. Osborne, who was then of course Mrs. Duo, or against the children, Claire Lindsay Duo and Benjamin Duo, that he should not threaten, harass or pester Mrs. Osborne or the children and that he should not enter the land or buildings known as 30 Treecot Drive, Leigh-on-Sea, Essex and 4/6 High Street, Hadleigh, Essex.
On 18th June 1991, I think on an inter partes hearing, the original order having been made ex parte, Mr. Duo undertook to continue to comply with those orders. On 3rd January of this year, in the course of an access hearing before Judge Rice, Mrs. Osborne alleged that the children did not wish to see their father because they had seen him throwing a washing line pole through the window of their house on 2nd December 1991. The judge was not, of course, concerned at that hearing with any question of whether that was or was not a breach of the order—plainly, it was a breach of the order if it occurred—but what he did do was, first of all, to order a welfare officer's report and, secondly, to warn Mr. Duo in stern terms of the consequences of breaching the terms of his undertaking and of the original order. In particular, he was warned that he should not go to 30 Treecot Drive.
It is alleged that eight days later, on 11th January of this year, he did in fact go to 30 Treecot Drive. He pushed open the door, causing the child Claire to fall over and, much more seriously, he kicked and punched Mrs. Osborne. That he was there on that occasion is not in doubt because he was arrested by the police at the house. Mr. Duo was released on police bail on condition that he lived at 370 Southbourne Grove, Westcliff on Sea. Mrs. Osborne thereafter applied to the court to have Mr. Duo committed for breaches of the orders of 16th May and the undertaking of 18th June, the notice to show cause specifying the following breaches:
"1. On the 2nd December 1991 telling the said child of the family Claire that you were going to smash the Respondent's face in.
2. On the 2nd December 1991 by entering the curtilege of the property 30 Treecot Drive Leigh-on-Sea.
3. On the 2nd December 1991 by throwing a washing line pole through the kitchen window at 30 Treecot Drive, Leigh-on-Sea thereby smashing the glass and denting one of the unit drawers in the kitchen.
4. On 11th January 1992 by entering the property 30 Treecot Drive Leigh-on-Sea.
5. On 11th January 1992 by pushing open the door at 30 Treecot Drive Leigh-on-Sea and causing the said child of the family Claire to fall on one side.
6. On 11th January 1992 by kicking the Respondent repeatedly in her thigh with the heel of your foot and punching the Respondent repeatedly in the stomach.
7. By your mother (upon your instructions or with your encouragement) in the early hours of the morning of 12th January 1992 entering the curtilage of the property 30 Treecot Drive Leigh-on-Sea and thereafter by your mother smacking the Respondent around the face."
Although efforts were made to serve Mr. Duo with the notice to show cause, there was no success. It appears that Mrs. Osborne's solicitors wrote to Mr. Duo's solicitor, saying, "Will you please accept service to avoid the costs of substituted service", but Mr. Twitchen of Mr. Duo's solicitors wrote back—and nobody criticises him in any way at all either in this respect or in any other respect of his conduct of these proceedings—saying he could not do so as he had no instructions from his client.
Accordingly, an order was made for substituted service by letter to be left at 370 Southbourne Grove, which was, it will be remembered, the address at which Mr. Duo was obliged to live as a condition of being admitted to bail in the criminal proceedings. The criminal proceedings, I may say, arose out of the incident on 11th January.
The committal hearing was timed for 10.30 a.m. on 13th March, a fact of which Mr. Twitchen was informed but which, on the evidence, he was unable to pass on to his client. Mr. Duo did not in fact attend at that time, but he did arrive for the access hearing which was timed for 12 noon. Mr. Twitchen, on the other hand, very properly attended at 10.30 out of respect for the court's order, although he had not been instructed by Mr. Duo to do so.
When the matter was called on at 10.30 a.m., there was a dialogue between those present which is recorded in the notes of evidence. Mr. Duo was, of course, absent. The learned judge said this:
"This is a man who on previous occasions has bragged to me—and I use the word deliberately—that he has avoided service. With one of the earlier applications he threw the order down once it had been served by the process server upon him.
MR. STERN: It may be that your Honour has in mind the service of the first order made in these proceedings which was the ex parte order made on 15 May by His Honour Judge O'Brien. I understand there is in fact an affidavit of service on the court file.
JUDGE RICE: I know I asked him questions on the last occasion, because I can tell you I remember the man, and he said he thought he was exercising his rights. You say therefore—Order 29—you have also substituted service—Order 7, Rule 8. Mr. Twitchen, I suppose you were aware of these proceedings because those instructing Mr. Stern let you know?
MR. TWITCHEN: Yes, your Honour, I have been dealt with with the utmost courtesy by them and have been kept informed.
JUDGE RICE: I would like to know when did you last see your client?
MR. TWITCHEN: I would need to go through the file.
JUDGE RICE: It is not your matter, I appreciate that: Miss White was here on the previous occasion when it came before me on 3 January, and that was to deal with access. Has he been informed about the access hearing?
MR. TWITCHEN: He is aware of the access hearing, your Honour.
JUDGE RICE: Was he aware of these committal proceedings from the file?
MR. TWITCHEN: Your Honour, I have no instructions to be here this morning by him; I have appeared as a matter of proper courtesy to the Court.
JUDGE RICE: Thank you; is your firm instructed to appear on the access?
MR. TWITCHEN: My firm is instructed on that application, yes, your Honour.
JUDGE RICE: There it is; it is irritating but it may well be that he is going to appear for the access matter. He may well come along at 12 o'clock. I know Mr. Duo quite well. I think he may well come along and say 'Well, I have not been properly served in respect of committal but here I am in respect of the access matter.' It seems to me that rather than spend further time now, irritating though it may be for everyone, if we leave it and wait, because I intended to deal with the committal and whatever I decided in respect of the committal proceedings I was then going to go into chambers and deal with the access. I still propose to do that because, obviously, the way I deal with the committal may play, to put it mildly, some part in the way I deal with the access. What I propose to do therefore is to adjourn this committal application, immediately he arrives (if he does arrive—perhaps you will let the Court know) and I will have it called. I think that is the best I can do in this matter. It would be silly to go ahead with the committal, and in his absence I would only have evidence one way, and clearly in view of what is said I would then have to impose, one would have thought, even allowing for your excellent mitigation, probably a term of imprisonment, when he could come along and say 'Well, this is a pack of lies,' and out of natural justice I would have to re-open the whole thing, so it would be a wasted effort."
After the adjournment, when the learned judge was told that Mr. Duo had arrived, the following dialogue took place:
"JUDGE RICE: Before we start, why was your client not here at 10.30, Mr. Twitchen?
MR. TWITCHEN: Your Honour, my instructions are that he was not served with any papers requiring him to be here at that time.
JUDGE RICE: Is it right that he is on bail and a condition of residence is that he resides at 310—and he is unaware of that, is that what he is saying?
MR. TWITCHEN: My instructions are that he has not been residing at that address and he is therefore in breach of the bail conditions.
JUDGE RICE: Well, he knows all about it now. Where has he been residing? At Raffles Bar?"
In fairness, it should be said that there had been an attempt to serve Mr. Duo at the Raffles Bar. The proprietor said he was not having any process servers in his bar,...
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