King v Read and Slack
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MILLETT,LORD JUSTICE POTTER |
| Judgment Date | 18 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1118-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3 96/7342/G |
| Date | 18 November 1996 |
[1996] EWCA Civ J1118-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANSFIELD COUNTY COURT
(DISTRICT JUDGE COWLING)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Woolf)
Lord Justice Millett
Lord Justice Potter
FC3 96/7342/G
MISS K JOHNSTON (Instructed by Burton & Co, Lincoln) appeared on behalf of the Applicant.
MR H KEITH (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents.
(As approved by the Judge)
The applicant, Melvin King, appeared before District Judge Cowling on 29 August last. The judge found that Mr King had committed two assaults on bailiffs of the court. The first assault involved the appellant reversing the car, which was to have been the subject of execution by the bailiff, forcing the bailiff to jump out of the way to avoid being struck. The second assault arose when a woman bailiff was seeking to serve a summons in relation to the first assault and the appellant struck her a number of times.
The appeal raises a number of practical points which are not without general importance. The first raises a question of jurisdiction of this court. Before turning to deal with that it is convenient to refer to Section 14 of the County Courts Act 1984, which is the provision under which District Judge Cowling found the assault proved and imposed the maximum punishment of three months' imprisonment consecutive in relation to each offence.
Section 14 provides:
"If any person assaults an officer of a court while in the execution of his duty, he should be liable—
(a) on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine of an amount not exceeding level 5 on the standard scale, or both; or
(b) on an order made by the judge in that behalf, to be committed for a specified period not exceeding 3 months to prison or to such a fine as aforesaid, or to be so committed and to such a fine,
and a bailiff of the court may take the offender into custody, with or without warrant, and bring him before the judge.
(2) The judge may at any time revoke an order committing a person to prison under this section and, if he is already in custody, order his discharge.
(3) A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a judge."
Subsection (3) was inserted in l990.
The jurisdiction which a District Judge exercises under Section 14(1)(b) is unusual in that it is a jurisdiction in relation to what is a criminal offence involving an officer of the court. The section clearly has a close relationship to the power of a court to punish for contempt. That relationship is emphasised by Section 13 of the Administration of Justice Act 1960, which is relied upon by Miss Johnson, on behalf of the appellant, for giving this court jurisdiction. That section states:
"(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings."
There are further provisions which I do not need to read out contained in subsections (2) and (3) which deal, inter alia, with the powers of this court. Subsection (5) provides:
"In this section 'court' includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references—
….
(b) to an order or decision of a county court, or of any court having the powers of a county court, under [section 14…. of the County Courts Act 1984],"
The power which the District Judge was exercising in this case is specifically referred to in Section 13 of the Administration of Justice Act 1960. Notwithstanding the clear language of Section 13, Mr Keith, who appears on behalf of the bailiffs and to whose argument we are indebted, argues that it is the wrong course to adopt to appeal to this court. He does not go so far as to argue that this court has no jurisdiction to hear appeals. As I understand his argument, he submits that in practice, at least in the ordinary case, its appeal to this court is not an appropriate course to adopt. He advances that argument because of other provisions of the County Court Rules which deal with appeals from District Judges to judges of the County Court.
So far as interlocutory appeals are concerned, they are dealt with by Order 13 rule 1(10). So far as other decisions are concerned, they are dealt with under Order 37 rule 6. Order 37 rule 6 is in very general terms and says:
"Any party affected by a judgment or final order of the district judge may, except where he has consented to the terms thereof, appeal from the judgment or order to the judge, who may, upon such terms as he thinks fit,—
(a) set aside or vary the judgment or order or any part thereof, or
(b) give any other judgment or make any other order in substitution for the judgment or order appealed from, or
(c) remit the action or matter or any question therein to the district judge for rehearing or further consideration or,
(d) order a new trial to take place before himself or another judge or the court on a day to be fixed."
The type of appeal to which Order 37 rule 6 applies is an appeal where the judge, in relation to the decision of the District Judge, exercises a very similar jurisdiction to that which this court exercises generally in relation to final appeals from the county court. In that respect it differs from Order 13 rule 1(10) when the judge rehears the matter.
In view of the concluding words of Section 13 of the Administration of Justice Act 1960, the immediate reaction is to regard Section 13(1) as overriding the general provision of Order 37 rule 6. However, similar language to that contained in Section 13(1) was considered by this court, presided over by the then Master of the Rolls, in Director General of Fair Trading v Stuart [1991] 1 All ER 129, [1990] 1 WLR 1500. That case concerned the wording of Section 42 of the Fair Trading Act 1973 which provided, so far as relevant:
"(1) Notwithstanding anything in any other enactment, an appeal…. shall lie from any decision or order of any court in proceedings under Part III of this Act.
(2) Any such appeal shall lie—(a) in the case of proceedings in England and Wales, to the Court of Appeal."
In relation to that provision Lord Donaldson said:
"It is said by counsel for Mr Stewart that this was a decision of the county court, albeit a decision of the registrar, and therefore an appeal lies to the Court of Appeal.
We have of course, given due weight to that submission, but the error lies in failing to appreciate that an appeal to the judge of the county court is in the nature of an internal appeal, and it is only if the litigant wishes to appeal outside the county court, an appeal from the county court to another court, that section 42 comes into play and specifies that the court shall be the Court of Appeal rather than the Divisional Court or the Restrictive Practices Court or any other court."
Lord Donaldson then goes on to say why he is fortified in that conclusion by comparing the position of decisions of registrars with those of Masters in the High Court.
The language of Section 42 is not as forceful as the concluding words of Section 13(1). Notwithstanding that, I am satisfied that the approach reflected in the passages from the judgment in the case to which I have just referred should be adopted in relation to Section 13.
Lord Donaldson did not make it clear as to whether the effect of the right of appeal within the county court excludes the jurisdiction of this court. However, I am satisfied that the jurisdiction is not excluded. The position as to jurisdiction is that there are two alternative routes for appealing which someone in the position of Mr King can adopt: either he can go to the judge of the County Court or he can come to this court. But that being so, I have no doubt whatsoever that the appropriate course, in the...
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