Knight v Clifton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SACHS,LORD JUSTICE BUCKLEY |
| Judgment Date | 18 December 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1218-3 |
| Docket Number | 1969 K. No. 956 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 1970 |
[1970] EWCA Civ J1218-3
Lord Justice Russell
Lord Justice Sachs, and
Lord Justice Buckley
In The Supreme Court of Judicature
Court of Appeal.
On Appeal from the High Court of Justice
Chancery Division (Mr. Justice Foster)
MR. GAVIN LIGHTMAN (instructed by Sharpe, Pritchard & Co., Solicitors, London, agents for William Baines, Solicitor, Brigg) appeared on behalf of the Third Defendant (Appellant).
MR. J.A.R. FINLAY (instructed by Waterhouse & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).
This case concerns a private vehicular right of way that is alleged to exist leading from a woodland property of the Plaintiffs southwards over a field the property of the Defendants towards the highway. The existence of the right of way is asserted in the action and must for the present purposes he assumed. An interlocutory injunction was on 1st July, 1969 obtained restraining the Defendants from (so far as now relevant) "doing any act or thing whereby the Plaintiffs may be hindered or obstructed in the free use" of the right of way shown and coloured green on the plan annexed to the order. The Third Defendant (the present Appellant) was duly served with this order on 13th August, 1969 properly endorsed. The Defendants were not represented at the hearing on 1st July owing, the Appellant says, to a mistake by their then solicitor; but no application was made to set aside the injunction. The way coloured green shown on the plan passes through Ordnance Survey 147 leaving a fairly narrow slice of that enclosure to its east.
Subsequently in early May, 1970 the Appellant in ploughing up Ordnance Survey 147 and 147A (to the west of Ordnance Survey 147) ploughed up also a stretch of the right of way at its northern end.
The Plaintiffs moved by Notice of Motion dated 20th May, 1970 to commit the Appellant for contempt. On 14th July, 1970, after adjournments for further evidence, the situation was reached when argument had been put forward on the affidavit evidence whether a contempt had been established. Mr. Justice Foster then intimated that he would like to hear oral evidence of the Appellant, indicating that he did not wish to put the parties to the expense of oral evidence from other deponents. At the adjourned hearing on 21st July the Appellant was cross-examined, mainly we were told by counselon his own attitudes in his activities, and the Judge then said that he did not propose to make any order save that the Appellant should pay the Plaintiffs' costs of the motion to commit, and moreover taxed on a common fund basis. Such an order would to my mind indicate that he found a contempt proved; but, on counsel for the Appellant enquiring whether this was so, the Judge said that it was not so. Thereupon argument was addressed to the Judge to the effect that he had in those circumstances no jurisdiction to inflict costs on the successful Defendant; full deployment of authority did not take place, no doubt because neither counsel foresaw the possibility of such an order. The case of Re Emmerson (later to be mentioned) was cited to him for the Appellant, but the Judge distinguished it on the ground that the person said to be guilty of contempt was not a party to the action. He adhered to his already announced decision.
His order as drawn up, after formal parts, was as follows: "This court doth not think fit to make any Order on the said Motion save that the defendant Thomas George Clifton do pay to the plaintiffs their costs of the said Motion such costs to be taxed by the Taxing Master on the common fund basis". As already indicated such an order would to me spell a finding of contempt, were we not told otherwise, and but for the fact that leave to appeal as to costs was expressly given by the Order.
Unfortunately we have no reasons of the learned Judge for this decision, and no transcript or other note of the cross-examination of the Appellant. Nor have we any firm ground for inferring what tentative conclusions if any the Judge had reached when he adjourned the motion for cross-examination of the Appellant, or whether he adhered to those conclusions. The grounds of appeal were: "(1) That the learned judge misdirected himself in principle and in law in ordering the Third Defendants to pay the said costsnotwithstanding that he did not adjudge the third defendant guilty of contempt. (2) That the learned judge did not exercise his discretion judicially in ordering the Third Defendant to pay the said costs notwithstanding that he did not adjudge the Third Defendant guilty of contempt".
The Plaintiffs cross appealed and the grounds of the cross appeal were: "(1) That the learned judge erred in not finding the third defendant guilty of contempt. (2) That having regard to the evidence (including the oral evidence of the third defendant) the order of the learned judge was a proper one".
It was argued for the Appellant on the basis of authority that there was no jurisdiction to award the whole costs of a proceeding against a defendant who had succeeded; though he might be ordered to pay costs of issues an which he had failed, or to mark misconduct by him in the course of the relevant proceedings. Here, it was said, the proceedings were the motion to commit (and with that last statement I would agree) and there was no such issue therein nor any such misconduct (and with that I would also agree). Alternatively it was argued that if there were jurisdiction, as a technical matter, the order made was unheard of and was plainly a wrong exercise of such judicial discretion as existed. It was accepted that the conduct of ploughing up part of the way was such as would justify the Judge in depriving the Appellant of his costs, and an order that the Plaintiffs should pay his costs of the motion was not sought.
I will say at once that I do not think it possible for this Court, on the cross appeal, to hold that the Judge should have found that there was a contempt of court; an immediate, though not necessarily the only, reason for this is that we have only part of the evidence that was before the Judge. Contempt of court, even of the type that consists inbreach of an injunction or undertaking, is something that may carry penal consequences, even loss of liberty, and the evidence required to establish it must be appropriately cogent. To hold that it was established on only part of the evidence before the Judge would be manifestly unjust.
Before looking further at such facts as appear from the evidence before us, I turn to the authorities which, it is contended for the Appellant, show that there was no jurisdiction to order him to pay any part of the Plaintiffs' costs of the motion to commit.
In Witt v. Corcoran, 1876 Law Reports 2 Chancery Division in this Court) where the decision was that an order stating that the defendant had committed a breach of an injunction (that is, a contempt) but only ordering costs against the defendant, it was held that an appeal would lie, it not being only a costs order. Obiter in this Court it was roundly stated that if the Court below had been of opinion that there had been no contempt "it could not have ordered him to pay the costs, any more than it could dismiss a bill and order the defendant to pay the costs of the suit". Dicks v. Yates (1881 18 Chancery Division, 76) was also a case where it was argued that no appeal would lie, the appeal being said to be on costs only. It was a copyright case. Mr Jessel, Master of the Rolls, said: "Now, if a plaintiff has no title, are the costs of the action in the discretion of the Court, so that the Court can give the whole of them to the Plaintiff? It seems to me that they are not. No one has ever heard of a defendant being ordered to pay the costs of a plaintiff who has failed to make out any title", and, again: "I wish not to be supposed to go further than I intend. I think that the Court has a discretion to deprive a defendant of his costs though he succeeds in the action, and that it has a discretion to make him pay perhaps thegreater part of the costs by giving against him the costs of issues on which he fails, or costs in respect of misconduct by him in the course of the action. But a judgment ordering the Defendant to pay the whole costs of the action cannot, in my opinion, be supported unless the Plaintiff was entitled to bring the action". The other members of the Court concurred.
Next is Foster v. Great Western Railway Company (1882 8 Queen's Bench Division, 515) also in this Court. That was a case in which it was held that the Railway Commissioners had no jurisdiction under the Regulation of Railways Act, 1873, Section 28, to order a railway company to pay the costs of an unsuccessful applicant. By the Section it was enacted that "the costs of and incidental to any proceeding before the Commissioners shall be in the discretion of the Commissioners". The Court held that the language of the Section being no wider than the discretion conferred upon the High Court by Order 55 in the Schedule to the 1875 Judicature Act, and that Order not conferring a jurisdiction to order a successful party to pay costs, the Commissioners had no such jurisdiction. Lord Justice Brett, on the basis of cases cited, said in terms that the Court of Chancery had formerly no jurisdiction to award the plaintiff's costs of an unsuccessful suit against the defendant; that Order 55, which was designed to confer on the Common Law Courts the discretion over costs thitherto only vested in the Chancery Court, did not widen the jurisdiction in that respect; and for that he adopted the opinions expressed in the two cases I have already cited. Thus did Lord...
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