Lee v Walker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 05 December 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1205-5 |
| Docket Number | 84/0461 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 1984 |
[1984] EWCA Civ J1205-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORTHING COUNTY COURT
Royal Courts of Justice
Lord Justice Cumming-Bruce
Lord Justice Dillon
Sir Denys Buckley
84/0461
MR J. L. MUNBY, instructed by the Official Solicitor to the Supreme Court, appeared for the Appellant (Defendant).
MR J. HAMED, instructed by Messrs Gates & Co. (Steyning), appeared for the Respondent (Plaintiff).
REASONS FOR JUDGMENT
On 21st November 1984 we allowed appeals moved by the Official Solicitor on behalf of Peter Walker, and quashed a committal order made against him by His Honour Judge Ward in Worthing County Court on 14th September 1984 and two committal orders made against him by His Honour Judge Cunliffe in the same court on 24th October 1984. We now give reasons for those decisions.
By his order of 14th September Judge Ward ordered that Peter Walker be committed for his contempt in certain breaches of injunction to prison for 28 days, and further ordered that the committal order should not be put into force provided that the contemnor should for a period of two months as from that date comply with two conditions.
On 24th October 1984 Judge Cunliffe held that he was in breach of a condition imposed by the order of the County Court of 14th September and ordered that the suspension of the order of committal of the 14th September be removed and that the contemnor be committed for contempt to prison for twenty-eight days or until sooner discharged by due course of law.
On the same day Judge Cunliffe found that Peter Walker had committed further contempt by breaches of injunction since 14th September, and ordered that for that contempt he should be committed to prison for three months and that the three month period do run consecutive to the period of twenty-eight days imprisonment ordered upon removal of the suspension of the committal order made by Judge Ward on 14th September.
The grounds of appeal fall under three distinct heads: First, that the County Court has no jurisdiction to suspend committal of a contemnor to prison for contempt by breach of an order of the court in the manner purported to be ordered by the County Court Judge on 14th September.
Second, that the County Court had no jurisdiction to order on 24th October that the three month period of imprisonment imposed by the second committal order upon that day should run consecutive to the period of twenty-eight days ordered by the first committal order made on that day.
Third, that all three committal orders were bad and must be quashed as all the orders were fatally tainted by procedural irregularities arising from all three notices of application for committal and upon the face of all three orders of committal.
We deal with those contentions in that order.
Has the County Court power to suspend a committal order made for contempt by breach of an order of the Court.
Mr Munby submitted that the County Court is an inferior court of Record and as such cannot have any jurisdiction to commit for contempt unless such jurisdiction has been conferred by statute. Whatever the validity of this proposition in earlier years, it cannot survive the year 1983, when by s.14 (4 A) as amended by the County Courts (Penalties for Contempt) Act 1983 which came into force on 13th May it was enacted that for the purposes of the preceding provisions of the section a county court should be treated as a superior court and not as an inferior court. However his next submission was that the power of the High Court was statutory, and conferred by RSC O.52 rule 7. O.52 replaced RSC.O59 and O.44. He submits that O. 52 r.7. conferred upon the High Court express statutory power and s.38 of the County Courts Act 1984 cannot as a matter of construction extend to confer upon the County Court a power which the relevant statute only confers upon the High Court. We do not accept the submission. s.38 reads:-
"(1) Every county court, as regards any cause of action for the time being within its jurisdiction:- (a) shall grant such relief, redress or remedy or combination of remedies, either absolute or conditional; and (b) shall give such and the like effect to every ground of defence or counterclaim equitable or legal, as ought to be granted or given in the like cause by the High Court and in as full and ample a manner.
"(2) For the purposes of this section it shall be assumed (notwithstanding any enactment to the contrary) that any proceedings which can be commenced in a county court could be commenced in the High Court."
There was in the instant case a cause of action within the jurisdiction of the County Court, namely the proceedings in which on the 9th March 1984 the Plaintiff obtained injunctions against the defendant. The injunctions ordered were, relief, redress or remedy or combination of remedies within the meaning of the rule, and the order for committal was an order ancillary to the enforcement of that relief. By the terms of the section relief, redress or remedy or combination of remedies may be either absolute or conditional and the jurisdiction is such as ought to be granted or given in the like case by the High Court pursuant to the powers conferred by RSC.O. 52 r.7. We do not accept that RSC O.52 r.7 conferred a new jurisdiction upon the High Court. In our view the content of the rule was procedural, and prescribed the procedure for the exercise of a power of suspension of committal orders which has never been doubted. As a matter of practice, the procedure usually followed was to direct that the order should lie in the office for a stated time and should not issue if the contemnor within that time complied with stated conditions, as a way of tempering justice with mercy, to use the language of Scarman J. when sentencing the contemnor in Dent v. Dent & Hall (1962 P.187). The common law way of giving a suspended sentence was explained by Lord Denning M.R. in Morris v. Crown Office 1970 2.Q.B. 114 at 125. O. 52 r.7. now prescribes the procedure for exercising the ancient common law power. The rule does not confer jurisdiction, but prescribes the method of its exercise. Mr Munby submitted that the decision of this court in In Re Lumley 1894 2 Ch. 271 was inconsistent with this view of the jurisdiction. But the judgments in that case make it plain that the court was not doubting the jurisdiction to make a penal order and to give days of grace before the order came into operation. It was the form of the order that was incorrect as a means of exercising the jurisdiction. The decision of the Divisional Court in Head v. Head 1982 1 WLR 1186 is not material to the powers of the High Court as it is concerned with the extent of the statutory powers conferred by s.63 of the Magistrates Act 1980.
For these reasons we find it unnecessary to examine other authorities cited by Mr Munby...
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