Linda Walters, Dawn Walters Kenneth Chapman and Others v George Richard Whitelock
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,LORD JUSTICE HOFFMANN |
| Judgment Date | 19 August 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0819-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF/94/0839/F |
| Date | 19 August 1994 |
[1994] EWCA Civ J0819-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(His Honour Judge Lynch)
Before Lord Justice Steyn Lord Justice Hoffmann
CCRTF/94/0839/F
MR D KNIFTON (Instructed by David Phillips & Partners, Liverpool L20 3EP) appeared on behalf of the appellant.
MISS M COMPTON-RICKETT (Instructed by Moorecroft Dawson & Garnetts, Liverpool, SAJ JL) appeared on behalf of the applicant in LTA/94/6512/B
This is an appeal against a judgment of His Honour Judge Lynch given on 22 April this year. On that occasion he had before him an application by the defendant under Ord. 37 r.2 of the County Court rules for an order setting aside the order of His Honour Judge Marshall Evans QC committing the defendant to prison.
The background may be stated briefly. The plaintiffs were Linda Walters, her daughter Dawn Walters and Kenneth Chapman the fiancee of Dawn Walters. The defendant had in the past lived with Linda Walters. Eventually they separated. Problems arose about access between them. In one of the proceedings the judge summarised matters by indicating that the defendant then determined upon a campaign to make life hell for Linda Walters and other members of the family. In relation to that campaign of harassment, it is to be noted that in September 1992 Judge Lachs committed the defendant to prison for 28 days for contempt. After further breaches in November 1992, Judge Lachs committed him, in his absence, to 6 months' imprisonment. On 27 November 1992 the defendant wanted to purge his contempt but what he did was to write to the court saying that he had not been served and had no idea the case was to be heard on 10 December 1992. On that occasion Judge Lachs gave the defendant an opportunity to be heard by setting aside the order. The case was reheard and Judge Marshall Evans QC imposed a 28 day suspended committal order on the defendant.
I mention that by way of background but it is also of some relevance in indicating that the defendant was not wholly ignorant of the ways of process servers and the procedure that was adopted on such occasions. On 1 July 1993, the defendant was again facing an application for committal. Judge Marshall Evans QC found the contempt established and he imposed custodial sentences of 14 months and 28 days.
On 19 October 1993, there was an application for that sentence to be either set aside or reduced. For that purpose the defendant tendered certain undertakings to the court. That undertaking was as follows:
"Until 12 noon on 3 day of February 1995 he would not enter or proceed along the following roads: Church Road, Seaforth; Rawson Road, Seaforth and Elm Drive, Seaforth."
Upon those undertakings Judge Marshall Evans QC did not order the immediate release of the defendant, but ordered that he be released on 15 November 1993.
Unfortunately, very soon afterwards, the defendant was back before Judge Marshall Evans. On that occasion he was not present. There was however a proper affidavit of service before Judge Marshall Evans and he considered the matters before him. He found the contempt proved. In particular, he found two separate incidents on 15 December 1993 proved. The first involved the defendant deliberately driving his motor car at the plaintiffs so as to cause the first and second plaintiffs to have to throw themselves out of the way to avoid being hit. He also drove his car at the plaintiff, Linda Walters, making her scramble over a wall and injuring her back in the process. Judge Marshall Evans found the contempt established and he committed the defendant to prison for 18 months.
There then followed the application before Judge Lynch, to which I have referred. The first point taken before the judge was that he had not been personally served. The judge would have in mind that the County Court Rules provide in Ord.7 r.2(a) that:
"Where a document is required by an Act or rule to be served personally-
(a) service shall be effected by leaving the document with the person to be served."
Judge Lynch heard the evidence of the process server to the effect that he had left the document with the defendant and that he placed it in his clothing. That account was denied by the defendant. The defendant described it as a pack of lies. The judge made positive findings of fact accepting the evidence of the process server. He rejected the evidence of the defendant. He found affirmatively that the process had been served.
He then dealt with a second issue, namely, the question whether, as a matter of discretion, he should grant relief to the defendant. He referred to an earlier finding that he had made that the defendant deliberately refrained from coming to court, although he had been properly served. It is clear from his judgment that the judge took the view, and found, that the defendant was aware of the date of the hearing and decided not to attend. He took into account further the history of the matter and then observed:
"It is imperative that defendant realised that if he is served with process he should deal with it and not think he can simply come to court and set aside any sentence of imprisonment. In my view to set aside the order would fuel his belief that he could continue to act in this way."
The matter comes before us by way of appeal. The first question relates to the matter of service. It is submitted that personal service did not take place in this case. Counsel submits that the process server should have informed the defendant of the...
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...The reason why an explanation is required under the second limb was itself explained by Hoffman LJ in ( Walters v Whitelock Unreported, 19 August 1994): " The purpose of the requirement that he be told is that he should not be able to say that he ignored the document on the grounds that it......