Elliott Cuciurean v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Edis |
| Judgment Date | 17 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1519 |
| Docket Number | Case No: CA-2022-001987 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1519
Lord Justice Coulson
Lord Justice Phillips
and
Lord Justice Edis
Case No: CA-2022-001987
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MR JUSTICE RITCHIE
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Moloney KC & Adam Wagner (instructed by Robert Lizar Solicitors) for the Appellant
Richard Kimblin KC & Michael Fry, Brendan Brett (instructed by DLA Piper) for the Respondents
Hearing Date: 9 November 2022
Approved Judgment
This judgment was handed down remotely at 2pm on 17 November by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
By a judgment dated 23 September 2022 ( [2022] EWHC 2457 (KB)), Ritchie J (“the judge”) sentenced the appellant to 268 days immediate custody for contempt of court. He also fined him £3,000. The relevant order was dated 6 October 2022. The appellant appeals against that order as of right.
There were originally four Grounds of Appeal. Ground 1 complained about the judge's conduct of the contempt hearings. Grounds 2 and 3 went to the sanction that the judge imposed. Ground 4 was a challenge to the finding of contempt: the argument was that the injunction in question did not apply to the appellant and therefore he was not in contempt of court.
On the Monday before the appeal hearing, the court was informed that Ground 1 had been abandoned. Save in one very limited respect, I say no more about it. Of the remaining Grounds, it is appropriate to consider Ground 4 first because, if the appellant is right, there was no contempt of court. As will become apparent below, the court has concluded, by a majority, that the injunction applied to the appellant and he was in contempt of court. It is therefore necessary to consider the question of sanction (Grounds 2 and 3): for the reasons set out below, the court is unanimously of the view that the sanction imposed by the judge was not excessive or unreasonable. In the result, therefore, the appeal will be dismissed.
The Appellant
The appellant is a serial protestor against the HS2 Scheme. This has led to at least one criminal conviction, a number of findings of contempt of court and the imposition of various terms of imprisonment although, until the present case, those have always been suspended.
On 16 October 2020, the appellant was committed for contempt of court for 12 breaches of an injunction protecting HS2 land at Crackley, near Kenilworth in Warwickshire. In his judgment on liability ( [2020] EWHC 2614 (Ch)), Marcus Smith J found the contempt proved, saying that the appellant “would go to very considerable lengths in order to give his objections to the HS2 scheme as much force as they possible could have”. He found the appellant to be an evasive witness.
The sanction imposed by Marcus Smith J was 6 months imprisonment suspended for one year. That term was reduced by this court to 3 months imprisonment, suspended for one year ( [2021] EWCA Civ 357). Despite that reduction, I note that, when that year was over, on 24 October 2021, the appellant published a social media message which read: “Goodbye suspended sentence, injunction breaking here we come.” The judge rejected the suggestion that that was some sort of “joke” on the part of the appellant, and there is no appeal against that finding.
In fact, it appears that the appellant had not waited until the end of the one year period to continue to break the law. Between 16 and 18 March 2021 — in other words, during the period in which the suspended sentence was operational — he trespassed on land in Hanch, near Lichfield in Staffordshire, and dug and occupied a tunnel there, again to disrupt the HS2 scheme. Although he was initially acquitted of aggravated trespass, the Divisional Court, in their judgment of 30 March 2022 ( [2022] EWHC 736 (Admin)), remitted the case to the magistrates' court with the direction to convict the appellant.
The appellant was duly found guilty of aggravated trespass on 29 June 2022. On 21 July 2022, he was sentenced to a 10 week term of imprisonment, again suspended for a year. No further details of this sentence have been provided. It is unclear to me why, having committed a further HS2-related offence during the period in which the original suspended sentence was extant, the appellant was not given a term of immediate custody. This history also means that, at the time of the contempt with which this appeal is directly concerned (May-June 2022), the appellant knew that he was going to be convicted and sentenced for the aggravated trespass, but he did not allow that to deter him. It appears that neither of the earlier suspended sentences were ever activated, either in whole or in part and, although this history was identified by the judge, it was not treated as the particularly aggravating feature I consider it to be.
The Order And The Alleged Contempt
On 28 March 2022, the respondents commenced proceedings against 63 defendants in respect of land, known as the Cash's Pit Land (“CPL”), on the proposed route of HS2 in Staffordshire. D1-D4 were all categories of “persons unknown” defined by reference to particular activities. D1 was defined as:
“Persons unknown entering or remaining without the consent of the claimants on, in or under land known as land at Cash's Pit, Staffordshire, coloured orange on Plan A annexed to the Particulars of Claim (the Cash's Pit Land”).”
D5-D63 were all named defendants. The appellant was D33.
The Claim Form and Particulars of Claim (“PoC”) sought immediate possession of the CPL. The PoC explained at paragraph 12 that the respondents did not know the names of all those occupying the CPL, but knew enough to identify D5-D20, D22, D31 and D63. That group of defendants, which did not include the appellant, were called the “Cash's Pit Named Defendants” in the PoC. However, the PoC made clear that there were other individuals-whether other named defendants or otherwise-who might come and go on the CPL. That was why the claim for trespass was made against both the Cash's Pit Named Defendants and D1. Those defendants, taken together, were called “the Cash's Pit Defendants”.
At paragraph 17 of the Particulars of Claim, the respondents sought an order for possession of the CPL. At paragraph 18 they sought a declaration confirming their immediate right to possession of the CPL. Both those claims were made against the Cash's Pit Defendants. At paragraph 24, the respondents set out their reasonable fear that, having removed the Cash's Pit Defendants from the CPL, “the Defendants will return to trespass on or cause nuisance to the CPL” or on other parts of the HS2 land. This last was a reference to the wider injunction sought against the defendants in relation to the entire route of the HS2 scheme, with which this appeal is not concerned.
In the prayer for relief, the respondents claimed:
“(1) An order that the Cash's Pit Defendants deliver up possession of the Cash's Pit Land to the First Claimant forthwith;
(2) Declaratory relief confirming the First Claimant's immediate right to possession of the Cash's Pit Land;
(3) Injunctive relief in the terms of the draft Order appended to the Application Notice;
(4) Costs;
(5) Further and other relief.”
The injunction in respect of the CPL was granted by Cotter J on 11 April 2022 (“the Cotter Order”). It was to all intents and purposes in the form referred to at paragraph (3) of the prayer in the PoC. Paragraph 3 of the Cotter Order ordered the Cash's Pit Defendants to give the respondents vacant possession of the CPL. Paragraph 4 contained the operative injunction:
“4. With immediate effect, and until the earlier of (i) Trial; (ii) Further Order; or (iii) 23.59 on 24 October 2022:
a. The Cash's Pit Defendants and each of them are forbidden from entering or remaining upon the Cash's Pit Land and must remove themselves from that land.
b. The Cash's Pit Defendants and each of them must not engage in any of the following conduct on the Cash's Pit land, in each case where that conduct has the effect of damaging and/or delaying and/or hindering the Claimants by obstructing, impeding or interfering with the activities undertaken in connection with the HS2 Scheme by them or by contractors, sub-contractors, suppliers or any other party engaged by the Claimants at the Cash's Pit Land:
i. entering or being present on the Cash's Pit Land;
ii. interfering with any works, construction or activity on the Cash's Pit Land;
iii. interfering with any notice, fence or gate on or at the perimeter of the Cash's Pit Land;
iv. causing damage to property on the Cash's Pit Land belonging to the Claimants, or to contractors, sub-contractors, suppliers or any other party engaged by the Claimants, in connection with the HS2 Scheme;
v. climbing onto or attaching themselves to vehicles or plant or machinery on the Cash's Pit Land used by the Claimants or any other party engaged by the Claimants.
c. The Cash's Pit Defendants and each of them:
i. must cease all tunnelling activity on the Cash's Pit Land and immediately leave and not return to any tunnels on that land;
ii. must not do anything on the Cash's Pit Land to encourage or assist any tunnelling activity on the Cash's Pit Land.”
Consistent with the PoC, the Cash's Pit Defendants were defined in the Cotter Order as:
“D1 and D5 to D20, D22, D31 and D63 whose names appear in the schedule annexed to this Order at Annex A.”
The relevant parts of Annex A identified D1 in the same terms as the Particulars of Claim (paragraph 9 above).
Paragraph 6 of the Cotter Order was in the following terms:
“6. The Court makes declarations in the...
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Edward Ellis v HM Solicitor General
...rare cases, the means of a contemnor can be a relevant factor in considering the appropriate sanction ( Cuciurean v SoS for Transport [2022] EWCA Civ 1519), in part because of the difficulties of enforcement and the like, but it is wrong in principle to rely on the contemnor's inability to......