Linnett v Coles
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE DILLON,LORD JUSTICE WOOLF |
| Judgment Date | 22 July 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0722-1 |
| Docket Number | 86/0684 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1986 |
[1986] EWCA Civ J0722-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(JUDGE O'DONOGHUE and JUDGE MICKLEM)
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Dillon
Lord Justice Woolf
86/0684
MR. J. L. MUNBY (instructed by The Official Solicitor) appeared for the Appellant.
MR. J. G. M. LAWS (instructed by The Treasury Solicitor) appeared as an amicus curiae.
This is an appeal by the Official Solicitor, acting on behalf of the defendant, John William Coles, against first an order made by Judge O'Donoghue, sitting as a judge of the High Court at Birmingham, whereby it was ordered that the defendant should be committed to prison for contempt of court "until further order" and, secondly, against a direction given by Judge Micklem, also sitting as a deputy High Court judge, on or about 12 February 1986 that a warrant for the defendant's arrest should be issued. The defendant had not obeyed orders of the court for the production of documents. The warrant was executed on 17 April 1986 and the defendant was lodged in prison the next day.
The appeal raises the following questions: first, was the order a lawful one having regard to the provisions of section 14 of the Contempt of Court Act 1981 (the 1981 Act)? Secondly, if the order was an unlawful one, has this court any jurisdiction under section 13(3) of the Administration of Justice Act 1960 (the 1960 Act) or R.S.C. Order 59 Rule 10(3) to substitute such other penal order, whether custodial or pecuniary, as it thinks just?
The Official Solicitor, through Mr. Munby, submitted that, as the order was unlawful on its face, it had to be quashed and that this court had neither power nor discretion to substitute any other order. Mr. Laws, as an amicus curiae, nominated by the Attorney-General, accepted that the order on its face was unlawful but submitted that the court had power to substitute such other order as was just.
The defendant's failure to produce documents in the course of litigation was a civil contempt. Doubts have been expressed whether section 14 of the 1982 Act applies to civil contempts. In my judgment, it clearly does; firstly, because of its wide language and, secondly, because the County Courts (Penalties for Contempt) Act 1983, which amended section 14 of the 1981 Act, made that Act applicable to contempts in the County Court. Most contempts in that court are civil ones. Answering the second question calls for consideration of what led Parliament to enact section 13 of the 1960 Act. Before then, there was no way of appealing against a finding and sentence for criminal contempt, save when there had been a conviction on indictment for such contempt (and there had not been one since 1902). It had been possible to appeal to this court against a finding and sentence for civil contempt but there had been fetters on the right of appeal. It was clearly the intention of Parliament to give a right of appeal in criminal contempt cases and to strike off the fetters in civil contempt ones. It did so by section 13, the relevant parts of which for the purposes of this appeal are as follows:
"(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.
…
(3) The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just;…"
If sub-section (3) is construed in the same way as any other statute is construed, namely by considering what Parliament wanted to achieve and the words used to that end, the appellate courts are given wide powers. If they reverse or vary the order under appeal they may, in addition, make such other order as may be just. When this case first came before this court (differently constituted) on 25 April 1986, it was obvious that the order imprisoning the offender "until further order" was unlawful and would have to be quashed. At that date, however, there was such a long history of contumacious default on the part of the defendant that the court was disposed to consider exercising its powers under R.S.C. Order 59 Rule 10(3) by substituting for the unlawful order a custodial sentence of a length which would be just. Mr. Munby submitted that the court could not substitute another sentence. The appeal was adjourned for further argument. The defendant was released on bail. The Attorney-General was invited to appoint an amicus curiae and did so.
By the time of the resumed hearing, both Mr. Munby and Mr. Laws had done much research. The surprising fact came to light that, although on a number of occasions since 1975 this court has considered whether, when there has been some irregularity in the making of a committal order for contempt, it had power to remedy the irregularity, it does not seem to have considered whether it could do so under section 13(3) of the 1960 Act. It has adjudged that it had no power to do so under the "slip rule", R.S.C. Order 20 Rule 11 (see Cinderby v. Cinderby (1978) CAT 78/272) or under the rule relating to irregularities, R.S.C. Order 2 (see Hill Samuel & Co. Ltd. v. Littaur (No. 2) (1985) 135 N.L.J. 556) or under the general powers of this court, R.S.C. Order 59 Rule 10(3) (see Hegarty v. O'Sullivan (1985) 135 N.L.J. 557).
Mr. Laws, however, did invite our attention to section 13 of the 1960 Act. He submitted that the effect of that section was to give appellate courts jurisdiction when, as with criminal contempts, none had existed and to extend jurisdiction when, as with civil contempts, it had been fettered. Having given jurisdiction Parliament should be taken to have expected appellate courts to use it which, since 1975 at least, this court has not done when there has been an irregularity on the face of the order. In a number of cases this court has adjudged that, once an irregularity, however minor, is revealed in the making or form of a committal order which has been executed, it cannot be cured: it must be quashed; and no substitute order made. The reason why this court has acted as it has was succinctly stated by Lord Denning M.R. in Cinderby v. Cinderby as follows:
"In cases concerning the liberty of the subject, the courts have always been most strict to see that all the requirements of the law are complied with. On a return for habeas corpus, the order has always to be in proper form. I am afraid in this case that there was an error in the committal order. It was not in accordance with the prescribed form. Therefore it must be set aside and Mr. Cinderby, the husband, must be released forthwith.
…We are so careful of the liberty of the subject that everything must be done in order before a man's liberty is taken away. We cannot correct this order under the slip rule."
I accept, of course, that judges must be vigilant concerning the liberty of the subject; but, if Parliament gives them discretionary powers, as section 13 of the 1960 Act seems to do, it is not competent for them to refuse to exercise those powers. It would be a misuse of powers for a judge to say: "I know Parliament has given me a discretion to vary orders in contempt appeals and make just ones, but I'm never going to use them. Such is my concern for the liberty of the subject that I am prepared to allow a contemnor who ought to be punished for contempt to go unpunished; and that is so, notwithstanding that Parliament envisages that I could consider imposing a just punishment". None of the cases in this court to which Mr. Munby has invited our attention are binding on us because seemingly the court never considered what powers it had to make a suitable order under section 13 of the 1960 Act.
Despite what seems to be the plain meaning of section 13 Mr. Munby submitted that Parliament, when enacting that section, must have intended appellate courts to apply it in a restricted way because any contemnor held in custody under a committal order bad on its face (as the one under appeal is) could apply for and obtain a writ of habeas corpus ad subjiciendum whereby he would be at once released. It followed that the power to vary and make another order could...
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