Jelson (Estates) Ltd v Harvey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE DILLON |
| Judgment Date | 20 September 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0920-1 |
| Docket Number | 83/0374 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 September 1983 |
[1983] EWCA Civ J0920-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE GOULDING
Royal Courts of Justice
Lord Justice Cumming-Bruce and
Lord Justice Dillon
83/0374
MR R.M. de LACY, instructed by Messrs Cripps Harries, Agents for Messrs Oldham Marsh & Son (Melton Mowbray), appeared for the Appellant (Defendant).
MR A.J. TRACE, instructed by Messrs Kingsford Dorman, appeared for the Respondents (Plaintiffs).
On 10th January this year the plaintiffs issued a writ accompanied by a statement of claim, and in the action they complain of breaches of covenant, being covenants in the fifth schedule to an instrument of transfer whereby the defendant became the occupier of some property on an industrial estate, the property of the plaintiff. The remedies sought in the prayer in the statement of claim were injunctions to restrain the defendants, their servants or agents from "blocking up or obstructing or permitting the blocking up or obstruction of:—(i) the brown hatched land; (ii) the yellow road", shown on the plan annexed, and an injunction to restrain the defendants from parking lorries, trucks, vans and trailers on the forecourt of certain units and from depositing any industrial waste or rubbish on the estate so as to cause the units to appear untidy, and an injunction to stop them burning it. The fifth schedule to the instrument of transfer included a covenant to keep all parts of the property transferred in a proper and tidy condition.
Upon an application before Mr Justice Warner the learned judge made an interlocutory injunction in the following terms. The defendant was restrained by himself or his servants or agents from doing any of the following acts: "(1) blocking up or obstructing by vehicles or otherwise or permitting the blocking up or obstructing as aforesaid of the land shown hatched brown edged green and edged yellow on the plan…. (2) depositing any industrial waste or rubbish on the forecourts of Units 11 and 12 the said Hayhill Industrial Estate so as to cause the said units to appear untidy…." That was the order made by the learned judge on 10th February.
It was followed by a notice of motion whereby the plaintiffs sought punishment for contempt of court for (1) failing to refrain from blocking up or obstructing by vehicles or otherwise the land the subject-matter of the injunction; and (2) failing to comply with the injunction prohibiting the defendant from depositing any industrial waste or rubbish on the forecourts. The notice of motion did not set out the grounds on which the plaintiffs were alleging breaches of the injunction. It was supported by an affidavit, but the notice of motion was irregular.
When that notice of motion came before Mr Justice Warner on 22nd April he made the following order: "UPON MOTION made by Counsel for the Plaintiff for an order that the Defendant do stand committed to prison for his contempt in disobeying the Order dated 7th February 1983…. THIS COURT DOES NOT THINK FIT to make any Order on the said Motion". The learned judge made that order when a point had been taken on behalf of the defendant that the notice of motion was irregular in that it did not comply with the rules by setting out on its face the grounds on which the applicant relied for his submission that there had been contempts of court. The learned judge said in terms that he refused after he had dismissed the motion to allow the motion to be amended, because, having dismissed the motion, there was nothing to amend. The judge clearly contemplated, as was sufficiently clear from what he said, that if the plaintiffs wished to proceed they must get their tackle in order and serve a notice of motion that complied with the rules.
That indeed was done. Notice of motion was then served which complied with the rules. Eventually it came before Mr Justice Goulding. The first point taken on the part of the defendant was that it was not open to the learned judge on the second notice of motion to proceed to consider the case on the merits and to decide whether to impose any punishment, because by analogy with the process in criminal proceedings the defendants could rely on the defence which is recognised in criminal proceedings under the nomenclature autrefois acquit, and the submission before the learned judge was that when Mr Justice Warner had made no order on the irregular motion brought before him he had exercised jurisdiction and dismissed the motion, but though he did so without any enquiry into the merits, upon the authorities in criminal cases two propositions apply. First, proceedings for civil contempt, namely for breach of an order of the court by way of breach of an injunction, are quasi criminal in character, so that the principles that apply in entertaining and proceeding upon motions for contempt for a civil contempt should follow the analogy of criminal proceedings with some strictness. Secondly, relying upon the case of Haynes v. Davis, reported in (1950) 1 King's Bench page 332, the correct approach was as follows. The learned judge, though he had made no order on the motion and had not considered the motion on its merits, had entertained jurisdiction in the sense or with the effect that the defendant was in jeopardy for punishment for contempt until the judge decided. He dismissed the motion on the grounds of its irregularity. The defendant had not been in jeopardy. It was not open to the plaintiff to commence a second set of proceedings seeking to prove the same contempt as that which it was alleged was the basis of the proceedings on which the defendant had been in jeopardy on the first occasion.
A number of authorities were cited before us in support of the two propositions propounded by the appellant. As to the first proposition that there is an analogy between criminal process and proceedings for contempt by way of breach of an injunction, the appellants rely on the decision of this court in Danchevsky v. Danchevsky, unreported, Court of Appeal transcript 10th November 1977. That decision establishes that for the purposes of proceedings for contempt of a civil court by disobedience of its order, the principle Nemo bis vexari applies, so that the criminal rules governing the defences of autrefois convict and autrefois acquit should avail the contemner if he has previously been in jeopardy of punishment for the contempt for which it is sought to punish him. So the appellant establishes his first proposition.
When, however, I come to the proposition on which the appellant relies, collected from the majority judgments in Haynes v. Davis, to which I have already referred, those judgments, in my view, have to be considered extremely carefully. They were judgments of the Divisional Court of the Queen's Bench Division when they were hearing an appeal by case stated from an order made by the stipendiary magistrate for South Staffordshire. Those proceedings were proceedings in a court of summary jurisdiction commenced by information. By section 19(2) of the Sale of Food and Drugs Act 1899 it was provided that in such proceedings when the summons is served it must be accompanied by a certificate of analysis in accordance with the provisions of subsection (2) of section 19. On the facts before the learned stipendiary magistrate the information was in proper form, but it had not been served together with the requisite certificate of analysis. When the magistrate realised that he dismissed the summons. No evidence as to the facts was given. Whereupon a new summons was issued. The information and complaint in that summons were the same and based on the same facts as the first summons, which the magistrate had already dismissed. But with the later summons the irregularity was cured and the analyst's certificate was duly served upon the appellant in compliance with section 19(2). The magistrate was of the opinion that on the hearing of the first summons the appellant had never been in peril, as the facts were not further gone into after the irregularity of procedure had been disclosed. The question for the opinion of the court was whether the magistrate came to the right decision in point of law.
Mr Justice Ridley and Mr Justice Avory were for allowing the appeal. The grounds by which they were moved were a little different. Mr Justice Ridley took the view that the magistrate had jurisdiction when he was considering the summons and that during the period before he decided to dismiss the summons for irregularity the defendant had been in jeopardy. Therefore the principle of autrefois acquit should apply. Mr Justice Avory based his judgment on the ground that the defendant had been in peril. He took the view that it was not a condition precedent to the attaching of the jurisdiction that the analyst's certificate should be served with the summons. He went on to say: "I cannot believe that a poor man who has no legal assistance and who does not take this objection because he does not know of it is in peril of being convicted, and that the man who has legal assistance and takes the objection never is in peril. The question whether the one or the other is in peril is to be ascertained by inquiring whether the magistrate had...
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