Howes v Howes
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Court of Appeal (Civil Division) |
LORD DONALDSON OF LYMINGTON, MR, STOCKER AND FARQUHARSON, L JJ
Contempt – breach of undertakings – committal to prison – order of committal not served on contemnor – committal invalid.
Procedure – committal for contempt – duty of county court to serve order of committal on contemnor – failure to do so rendering committal invalid.
Following an assault, the wife obtained an ex parte injunction forbidding the husband from assaulting or molesting her or from entering the estate where the matrimonial home was situated. The injunction was effective for eight days pending an inter partes hearing. At the inter partes hearing the husband gave undertakings in the same form as the terms of the injunction. A week later the husband breached those undertakings. At 12.15 am he broke into the matrimonial home and punched and threatened the wife. The wife applied for the husband's committal and the Judge found the husband to be in contempt and committed him to prison for 12 months.
The husband appealed submitting that he had not been served with a copy of the committal order until 15 days after his committal and that this failure to serve was in breach of CCR Ord 29 r 1(5).
Held – Failure to comply with CCR Ord 29 r 1(5) was fatal to the lawfulness of the committal. This had been stated in a number of decisions of the court: see Clarke v Clarke [1990] FCR 641 and B v B (Contempt: Committal) [1991] FCR 386. By the date of the hearing of the appeal, over a month after the committal order was made, the county court had still not served a copy of the order on the husband. The only service which had taken place was at the instance of the wife's solicitors and that was too late. Counsel for the wife had complained with justice that the wife would now be at risk through the incompetence of the county court. Counsel had submitted that the Court of Appeal should direct that the applicant's solicitors should be responsible for completing the order of committal in Form N 79, submitting it to the Judge for approval, and thereafter serving it on the respondent. This could not be done as the court must be responsible for the carrying out of its own orders through its officers. As a result of the deplorable failure on the part of the county court to comply with the rules, the husband's appeal succeeded and the committal order would be quashed. It was the responsibility of the chief clerk of a county court to ensure that his staff properly understood the provisions of the rules.
AppealAppeal from His Honour Judge White sitting at Wandsworth county court.
Gemma Taylor for the husband.
Caroline Willbourne and Catherine Jenkins for the wife.
LORD JUSTICE FARQUHARSON.The judgment I am about to deliver is the judgment of the court.
This appeal is from an order made by Judge White on 13 February 1992 at the Wandsworth county court whereby he held the husband to be in contempt of court and sentenced him to a term of 12 months' imprisonment.
The parties were married on 21 February 1986 and have three children aged 8, 5 and 3. They live in local authority accommodation. The wife complains of a history of violence on the part of the husband throughout the marriage and that his violence towards her has increased in recent months. The present proceedings began when the wife claimed that she had been assaulted by the husband on 17 January 1992 while she lay in bed. The husband had clasped his hands round her throat, "pressing down very hard".
On 22 January 1992 the wife applied to the Wandsworth county court for...
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M v P and Others; Butler v Butler
...however, these powers will be used only in exceptional cases" because section 13 is solely concerned with appeals in cases of contempt. Howes v. Howes [1992] NLJ 753 is a County Court case in which Form N79 was never served on the contemnor. Farquharson L.J. giving the judgment of the court......
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Delaney v Delaney
...with the requirements of Ord. 29, r. 1(5) of the County Court Rules 1981 is fatal to the lawfulness of the committal' (see Howes v Howes 142 NLJ 753) and that in contempt cases the court's powers under section 13(3) of the Administration of Justice Act 1960 will be used only in exceptional ......
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M v P (Contempt of Court: Committal Order) ; Butler v Butler
...ER 118. Clarke v Clarke [1990] FCR 641. Duo v Osborne (formerly Duo) [1992] FCR 583; [1992] 1 WLR 611; [1992] 3 All ER 121. Howes v Howes[1992] 2 FCR 287. Lewis v King[1992] 2 FCR Linnett v Coles [1987] QB 555; [1986] 3 All ER 652. Morelle Ltd v Wakeling [1955] 2 QB 379; [1955] 1 All ER 708......
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C. (A Minor) v Hackney London Borough Council
...the requirements of Ord 29, r 1(5) of the County Court Rules 1981 is fatal to the lawfulness of the committal' (see Howes v. Howes (1992) 142 NLJ 753) and that in contempt cases the court's powers under s 13(3) of the Administration of Justice Act 1960 will be used only in exceptional cases......