Griffin v Griffin
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE SIMON BROWN |
| Judgment Date | 07 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0407-22 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 2000 |
| Docket Number | Case No: 2000/0253/B1 |
[2000] EWCA Civ J0407-22
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF
HIS HONOUR JUDGE MOSTYN QC
Lord Justice Simon Brown and
Lady Justice Hale
Case No: 2000/0253/B1
Miss Cheryl Jones (instructed by Messrs Debo & Co, London N4) for the Apellant)
Miss Delphine Breese-Laughran (instructed by David Levene & Co, London N2) for the Respondent)
This case raises a difficult question concerning the terms upon which the court may suspend an order for committal for contempt of court. In short: is an order suspended for so long as the contemnor complies with another order of indefinite duration invalid?
On 15 March 2000, Assistant Recorder Mostyn QC, sitting in the county court jurisdiction of the Principal Registry of the Family Division, committed the appellant to prison for a total of six months, made up of two consecutive terms: (1) four months for breaches committed on 29 October 1999 of an order under Part IV of the Family Law Act 1996 made by His Honour Judge Downes on 1 June 1999; and (2) two months under a suspended sentence, also imposed by His Honour Judge Downes on that date, activated because of a breach of the same order committed on 18 June 1999.
The appellant and respondent married on 28 December 1994. They have two daughters, one now nearly six and the other just four. A psychiatric report reveals that the appellant has a long history of anxiety and depression with some psychotic symptoms and a very long history of drug abuse and misuse of alcohol. Proceedings between them began with Family Law Act orders with a power of arrest made on 10 June 1998. Thereafter there were four arrests and four committal hearings, two of which resulted in suspended committal orders, although the parties did not finally separate until February 1999.
On 1 June 1999 there was a fifth committal hearing. His Honour Judge Downes found proved two separate breaches of the most recent order, made by His Honour Judge Callman on 4 February 1999. He ordered that the appellant
'… be committed for contempt to prison for a total period of 2 months. The order is suspended and will not be put into force if and so long as the contemnor complies with the following terms: the respondent complies with the terms of the non-molestation and occupation orders of even date.'
The order is internally inconsistent in that the record of contempts proved imposes concurrent penalties of one month's imprisonment for each breach, but it is clear from the transcript of the judgment that His Honour Judge Downes intended to impose two months' imprisonment for each breach and no point is now taken upon that.
The non-molestation and occupation orders made that same day were expressed to last 'until further order of the court' although the power of arrest which was attached to all the substantive prohibitions in the order was to last until 1 December 1999. Hence the term of imprisonment was effectively suspended indefinitely.
On the afternoon of 29 October 1999 an incident took place outside a public house involving the respondent wife, her new partner Andrew Ross, the two little girls, and the appellant. The police were called and the appellant was arrested both for breach of the Family Law Act orders and for various criminal offences. Next day His Honour Judge Levy attended at Paddington Green Police Station for a committal hearing. He adjourned it to 1 November and remanded the appellant in custody.
The matter came before Assistant Recorder Mostyn QC on 1 November. The wife had filed an affidavit of that date. This dealt in detail with the events of 29 October and mentioned some of the background but did not deal with all the alleged breaches which had taken place since 1 June 1999. The matter was adjourned for 24 hours to allow her to serve a Notice to Show Cause detailing her additional allegations later that day. That Notice dealt, among other things, with an alleged breach on 18 June 1999.
The matter came back before Assistant Recorder Mostyn QC on 2 November. He adjourned the committal application until 13 March 2000 and released the appellant on conditional bail until then. The parties were ordered to file their own affidavits and those of any witnesses upon whom they intended to rely on or before 16 November 1999. Neither party was to call any witness who had not made an affidavit so filed and served. The tape of the police interview of the appellant was to be transcribed, agreed, filed and served. A further order under the Family Law Act with power of arrest was made until 13 March 2000.
The appellant filed his own affidavit, dated 15 November 1999, and another from a friend who had been with him on 29 October 1999. The respondent wife did not file any more evidence until March 2000. She then filed two affidavits dated 3 March 2000, one dealing with events before 2 November 1999, and one dealing with events after. She also filed affidavits from Andrew Ross, her mother, her sister, and a friend.
The hearing took place on 13 and 14 March 2000 before Assistant Recorder Mostyn QC (sitting as a Deputy High Court Judge but not on this occasion exercising the High Court jurisdiction). Objection was taken to the late filing of the respondent's evidence and the judge excluded the affidavits from the respondent's mother, sister and friend. An objection to the interview transcript was withdrawn. The judge heard oral evidence from the parties and from Andrew Ross. Objection was taken to Mr Ross's evidence and the judge excluded certain parts of it which were new but admitted those parts dealing with events of 29 October 1999 which in his view contained no element of surprise as the essence had been put to the respondent during his police interview. The judge found the alleged breach on 18 June 1999 and some of the allegations about the incident on 29 October 1999 proved.
On 15 March 2000, having heard argument about the validity of the suspended committal order made by His Honour Judge Downes, the judge made the committal orders but stayed them for 14 days pending an appeal. The appeal came before this Court on 28 March 2000, when it was dismissed for reasons to be given later.
Miss Jones, on behalf of the appellant, has attacked both parts of the order, but the attack on the first can be dealt with shortly. She complains that the judge should not have admitted the late filed evidence, as to the incident on 29 October 1999, and in particular the oral evidence of Mr Ross. However, as the account given above shows, the judge gave careful consideration to the extent to which the appellant might have been prejudiced by the late filing of evidence. He excluded some of this evidence even though it concerned allegations already dealt with in some detail in the Notice to Show Cause and had been served more than a week before the hearing. This was pre-eminently a matter for the trial judge and there is no basis for the suggestion that the appellant did not receive a fair trial as a result.
The same applies to the first ground upon which the second part of the order, the activation of the suspended sentence, is impugned. The respondent's first affidavit, dated 1 November 1999, dealt with the events surrounding the appellant's arrest on 29 October, but not with the other specific incidents between 1 June 1999 and that date which were contained in the Notice to Show Cause. These, including the incident on 18 June 1999 which the judge found proved, were dealt with in her affidavit of 3 March 2000 and her oral evidence. The Rules of the Supreme Court, Ord 52, rule 4(2), require that the notice of motion, stating the grounds of the application 'and accompanied by a copy of the affidavit in support' must be served personally upon the person sought to be committed. Ord 52, rule 4(3), allows the court to dispense with service of the notice of motion if it thinks it just so to do. The County Court Rules, Ord 29, rule 1(4), require the proper officer, at the request of the judgment creditor, to issue a notice which must be personally served. Under Ord 29, rule 1(4A)(c), the request must be supported by an affidavit stating the grounds on which the application is made. Ord 29, rule 1(7), allows the court to dispense with service of the notice if it thinks it just and proper so to do. If...
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