Hussain v Hussain
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NEILL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 12 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0312-2 |
| Docket Number | 86/0247 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1986 |
[1986] EWCA Civ J0312-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HIS HONOUR JUDGE MONIER-WILLIAMS)
Royal Courts of Justice
The Master of the Rolls (Sir John Donaldson)
Lord Justice Neill
Lord Justice Ralph Gibson
86/0247
MR. S. H. BELLAMY (instructed by Messrs. Dennis Galpin) appeared for the Appellant Husband.
MR. ADRIAN ILES (instructed by Messrs. H. Omar & Co.) appeared for the Respondent Wife.
MR. J. G. M. LAWS (instructed by The Official Solicitor) appeared as an Amicus.
On 25 April 1985, in the course of divorce proceedings, the husband, by his counsel, gave an undertaking to the court not to molest his wife. He was present in court when the undertaking was given. The undertaking was recited in the formal order of the court, but the operative part dealt only with the withdrawal by the wife of an application to commit the husband to prison and with costs. This order, which was not endorsed with a penal notice, was issued to the wife's solicitors, but never served upon the husband.
On 12 September 1985, the husband appeared before Judge Monier-Williams to answer an application to commit him to prison for breach of this undertaking. The learned judge found that the husband had indeed broken his undertaking in certain respects and ordered his imprisonment for one month suspended for six months provided that thenceforward he strictly complied with the undertaking. In the course of his judgment he adverted to the fact that the formal order had not been served upon the husband, but held that he had discretion under C.C.R. Order 29 Rule 1(7) to dispense with such service. He did so upon the ground that the husband was an educated man who had been advised by counsel and solicitors when the undertaking was given and that there was no doubt that he both understood the nature of his undertaking and the potential seriousness of any breach.
In this court, as below, it has been submitted that the failure to serve a copy of the order upon the husband was fatal to the application to commit. In addition, in this court, it has been submitted that an equally fatal objection is that the order contained no penal notice. Further, it was submitted that the warrant of committal itself is defective in that it failed to record the fact that the learned judge had dispensed with service of the order upon the husband.
Problems concerning committal orders by county courts have come before this court with some frequency recently, as is apparent from Williams v. Fawcett (1985) 1 WLR 501 and the cases therein considered. This appeal raised at least one new point, namely whether, as was assumed in Williams v. Fawcett, an undertaking is in all respects to be treated as equivalent to an injunction in the same terms. Accordingly, we invited the Attorney-General to instruct an amicus and we have had the considerable advantage of submissions by Mr. John Laws in addition to those by Mr. Bellamy on behalf of the appellant husband and by Mr. Iles on behalf of the respondent wife.
Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in the like terms and that the contrary has never been suggested. What has been suggested by Mr. Iles, with the support of Mr. Laws, is that the procedural requirements for enforcement are not as strict in the case of an undertaking as in that of an order because C.C.R. Order 29 Rule 1 and R.S.C. Order 45 Rule 5, which is the equivalent rule in the Supreme Court, have no direct application to committal for breach of an undertaking. Having now been referred to the authorities, I have no doubt that this submission is well-founded. Undertakings may be recorded in an order of the court, as occurred in this case, but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules apply. The heading to C.C.R. Order 29 is indeed "Committal for Breach of Order or Undertaking", but this is a reference to Order 29 Rule 3, which is concerned with undertakings by solicitors as such.
That said, the codes provided by these two rules, which are founded upon natural justice, should be applied, subject to such modifications as are necessary or desirable in the light of the fact that an undertaking is volunteered, however unwillingly, by the person concerned, whereas a judgment or order is imposed. This distinction has long been recognised. Thus, in Callow v.Young (1886) 55 L.T. 544, Chitty J. said:
"It is not necessary to show that the person sought to be attached had knowledge of his. undertaking. He must be presumed to have known that he had given his undertaking."
This has led to a practice whereby the courts do not require proof of service of a copy of the undertaking, before enforcing it (see D. v. A. & Co. (1900) 1 Ch. 484...
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