Harmsworth v Harmsworth
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,LORD JUSTICE NICHOLLS |
| Judgment Date | 01 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0701-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0709 |
| Date | 01 July 1987 |
[1987] EWCA Civ J0701-7
Lord Justice Woolf
and
Lord Justice Nicholls
87/0709
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (Civil Division)
On appeal from an order of His Honour Judge Cook
Royal Courts of Justice.
MR. M. CURTIS (instructed by Messrs. Davies, Blunden & Evans, Camberley, Surrey) appeared on behalf of the Appellant/Respondent.
MISS K. BIRCH (instructed by Messrs. Reece, Jones & Johnson, Sutton, Surrey) appeared on behalf of the Respondent/Petitioner.
This appeal concerns a committal order. It is an appeal by the respondent in the proceedings from an Order made last Friday, 26th June, by His Honour Judge Cook sitting at the Epsom County Court, whereby, having found the respondent to the proceedings guilty of contempt of court by committing breaches of an injunction, he ordered him to be committed to prison for one month.
The parties to the proceedings are a husband and wife. The petitioner is Mrs. Lesley Harmsworth, and the respondent is Mr. Victor Harmsworth. I shall refer to them respectively as "the wife" and "the husband".
The brief background to this matter is as follows: the parties were married on 16th July 1983. There were no children of the marriage and the parties are presently living apart and have done so since the 10th April 1987. A divorce petition was presented by the wife on 27th April on the ground of unreasonable behaviour by the husband, and violence and threats of violence were alleged by the wife.
On 30th April 1987 a temporary non-molestation order was made by Judge Lermon Q.C. on the application of the wife. The matter came back before the same judge on 6th May. On that occasion the wife was represented by counsel and the husband appeared in person. The judge then made an order whereby the husband was restrained from assaulting, molesting or otherwise interfering or communicating with the wife save through the wife's solicitors, and he was further restrained from going to the wife's place of work which was identified in the order.
Some six weeks or so later, on 22nd June 1987, a committal application in the form of a notice to show cause why the husband should not be committed to prison for breaches of the order of 6th May was issued. We were told that an earlier committal application in respect of breaches of the same order came before the court on 5th June, but some confusion surrounds this occasion. Although both parties attended the hearing, it seems that it may be that no notice to show cause had ever formally been issued. In the event the application or purported application did not proceed. For the purposes of this appeal nothing turns on that previous abortive application.
The committal application, issued on 22nd June, was supported by an affidavit by the wife, and the husband put forward an affidavit in answer. The application came before His Honour Judge Cook on 26th June. Both parties were represented by counsel. For the husband a point was taken at the outset on the form of the notice. The judge ruled against the husband. The note that we have of the judge's judgment on this part of the application reads as follows: "I am faced with an objection in two ways. First is a technicality. All breaches should be fully particularised and set out seriatim in the notice. The respondent must have full and reasonable notice—reasonable means not just temporal, but also of the charge. Here the notice was accompanied by affidavits. Mr. Curtis submits it is not sufficient because it must be in the notice.
"I agree that the notice does not have sufficient details and particulars—that is clear on the face of the notice. I found Mr. Curtis's submission surprising. I was referred to Dorrell v. Dorrell and the note in the Green Book. I cannot find anything in that report justifying the dogmatism set out. Dorrell v. Dorrell says the nature of the acts must be set out. I take the view that the notice by setting out the categories is sufficient and that the particulars are in the affidavit.
"Second is a matter of substance. It is submitted that even if one reads the notice and the affidavit, the respondent still does not have sufficient detail. I have been referred to one affidavit. I do not accept that contention. The affidavit is sufficient."
Following that ruling the facts were then gone into and oral evidence was given by both parties who were cross-examined on their affidavits. Having heard the evidence and submissions, the judge found contempt proved and made-the order I have mentioned.
On this appeal the points taken for the husband are what his counsel himself described to the court as technical. No point is taken on the facts nor, technicalities apart, on the sentence. The primary point taken is, in short, that the notice issued on 22nd June did not specify the breaches of the order of 6th May with sufficient particularity to enable the husband to know from the notice itself what were the alleged breaches so as to enable him to see the case being made against him. The point is a technical one if, from the information supplied to the husband, he knew the case he had to meet, even though that knowledge was acquired not wholly from what was set out on the face of the notice. It was accepted before us that, having regard to the contents of the wife's affidavit, the husband and his advisers did know in advance what case he had to meet, and that the husband was not embarrassed save as to one point to which I shall come later. But technicality or no, is the point well-founded?
I should refer next to the material parts of the notice issued on the 22nd June. The notice is addressed to the husband and the material parts read as follows: "Take notice that the petitioner will apply to this court at"—then details of the place and the date and the time are given—"for an order for your committal to prison for having disobeyed the order of this court made on the 6th May 1987 restraining you from: 1. Assaulting, molesting or otherwise communicating with the petitioner save through the petitioner's solicitors; 2. Restraining you from going to the petitioner's place of work"—which was then stated—"by the following behaviour: (1) Constantly telephoning the petitioner at work and threatening her life as set out in the affidavit attached hereto; (2) Following her on numerous occasions as set out in the affidavit accompanying this application; (3) Meeting the petitioner and using threatening behaviour; (4) Following the petitioner on Saturday 16th May when she was required to drive to Sutton police station for her protection; (5) Writing to the petitioner on numerous occasions following the grant of the injunction; (6) Hiring a private detective to track her down at home; (7) Slashing the tyres of the petitioner's car. And further take notice that you are required to attend the court on the first mentioned date to show cause why any order for your committal should not be made."
The supporting affidavit by the wife which I have mentioned was served on the husband along with this notice, although not actually attached to it. The affidavit of the wife ran to some six pages with two exhibits. It was in the usual narrative form. Mr. Curtis submitted that recourse may not be had to the wife's affidavit to supplement any deficiencies in the notice itself. He further submitted that without recourse to the wife's affidavit, the particulars of the alleged breaches were insufficient, in particular no dates are given under paragraph 1 with regard to the constant telephoning and making of threats. He pointed out that paragraph 1 did not even state that the telephoning had occurred between specified dates. As to paragraph 2 regarding the charge that the husband had followed the wife on numerous occasions, he pointed out that no dates were given; no places were identified; nor was the manner stated, for example whether the husband had followed the wife on foot or in a car. As to paragraph 3, where the allegation was that the husband had met the wife and there was threatening behaviour, no date or place, or dates or places were stated. With regard to paragraph 4 concerning writing to the petitioner on numerous occasions, again no dates were given. With regard to paragraph 6 concerning hiring a private detective, it was submitted that it was not clear whether the charge was that the act of hiring was a breach or whether the breach lay in the detective successfully tracking down the wife at her home. Finally, as to paragraph 7, no details are given as to when or where the husband is said to have slashed the tyres of the wife's car. Indeed, Mr. Curtis went further and submitted that regarding some of the breaches, there were inadequate particulars even if regard is had to the contents of the wife's affidavit. It was submitted overall that a committal application is a quasi criminal matter and the notice should contain details of the alleged breaches in a manner equivalent to counts in an indictment or charges in a summons.
We were referred to several authorities, but it will be sufficient for me to mention only two, both decisions of this court. The first is the case of Dorrell v. Dorrell (1986) F.L.R. 1089. This decision is also referred to in the notes in the County Court Practice to Order 29. We have had the advantage of being referred to a full transcript, which is transcript No. 389 of 1984 in the Supreme Court Library of the Court of Appeal Civil Court judgments. There the court was considering an appeal from the County Court against a judge's dismissal of a committal application. The President, Sir...
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