MEDINA Housing Association Ltd v Andrew Neil CONNOLLY/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LADY JUSTICE ARDEN,MR JUSTICE CRESSWELL |
| Judgment Date | 26 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1263 |
| Date | 26 July 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2002/1439 |
[2002] EWCA Civ 1263
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT COUNTY COURT
(His Honour Judge Thompson QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lady Justice Arden
Mr Justice Cresswell
B2/2002/1439
MR JAMES COUNSELL (Instructed by Roach Pittis, 62–66 Lugley Street, Newport, Isle of Wight PO30 5EU) appeared on behalf of the Appellant
MR PHILLIP GLEN (Instructed by The Isaacs Partnership, Wessex Chambers, 21 Lansdowne Road, Bournemouth, Dorset BH1 1EL) appeared on behalf of the Respondent
Friday, 26th July 2002
This is an appeal by Andrew Neil Connolly from part of the order made by His Honour Judge Thompson QC on 25th June of this year in the Newport (Isle of Wight) County Court. By that part Mr Connolly was committed to prison for six months for breach of an injunction made against him on 28th February 2002. The judge also gave a concurrent sentence of one month's imprisonment for contempt in the face of the court. There is no appeal from that part of the order.
Mr Connolly and his then partner, Emma Donnellan, were tenants at 16 Anchorage Way, East Cowes in the Isle of Wight, the landlord being the Medina Housing Association Ltd ("Medina"). Complaints were made against Mr Connolly and Miss Donnellan by other residents of Anchorage Way because of their anti-social behaviour. One complainant was Mr Divinney of 15 Anchorage Way. Medina on 18th December 2001 brought proceedings against Mr Connolly and Miss Donnellan for possession and an injunction against entering Armitage Way, assaulting or threatening or otherwise behaving in such a manner as to cause a nuisance or annoyance to residents of Anchorage Way. Medina obtained an interim injunction from Portsmouth County Court until trial restraining them from:
"(1) Assaulting or threatening the other residents of Anchorage Way, East Cowes, Isle of Wight or any other person residing, visiting or otherwise engaging in a lawful activity in the locality of 16 Anchorage Way.
(2) Behaving in such a manner as to cause a nuisance or annoyance to the residents of Anchorage Way or persons residing, visiting or otherwise engaging in a lawful activity in any the form within 16 Anchorage Way so as to be audible inside any other residential property in the locality."
A power of arrest until 21st March 2002 in relation to Mr Connolly was added to the order pursuant to section 153 of the Housing Act 1996.
Mr Connolly was arrested for an alleged breach of the injunction. On 4th February the court heard evidence that he had disobeyed paragraph (2) of the order of 21st December 2001. The court ordered that Mr Connolly be released on bail on terms that he complied with a further injunction in like terms to the order of 21st December 2001, that injunction to remain in force until the hearing on 7th March of a committal application to be made by Medina. On 7th February an application notice for the committal of Mr Connolly was filed. Among the acts said to have been committed by Mr Connolly was harassment and intimidation, constituting nuisance and annoyance to the residents of 15 Anchorage Way, including staring at Mr Divinney on two occasions. Evidence was obtained from close-circuit television, and that was filed. The evidence was of incidents which occurred at Anchorage Way on 2nd and 3rd February.
Thereafter further incidents were recorded on tape. This included on 22nd February threats by Mr Connolly to kill Mr Divinney. Evidence of this was contained a witness statement of Mr McDonald, Medina's head of housing. On 22nd February the court vacated the hearing on 7th March and directed that Mr Connolly be remanded in custody until a hearing on 28th February. On 22nd February Medina filed a further application for the committal of Mr Connolly. That was done pursuant to a direction of the court. Medina alleged breaches of both paragraphs of the injunction of 4th February.
On 28th February the committal hearing took place in Portsmouth County Court before His Honour Judge Davis. Mr Connolly had counsel appearing for him. A further injunction in the terms of paragraphs (1) and (2) of the previous injunctions plus a third paragraph, to which Mr Connolly consented, prohibiting Mr Connolly from entering Anchorage Way and another road until 28th August 2002, was made. The injunction was expressed to remain in force "until 24 June 2002" unless previously revoked. A power of arrest was attached to expire "on 24 June 2002". It is not in dispute that the date of 24th June was chosen because that was the date fixed for the hearing of Medina's claim for possession and a permanent injunction. Mr Connolly admitted that he was in breach of the injunctions of 21st December 2001 and 4th February 2002. The judge sentenced Mr Connolly to 42 days' imprisonment.
On Monday 24th June the trial of Medina's proceedings for possession and a permanent injunction commenced. Mr Connolly chose not to be present or represented, but during the lunch adjournment an incident occurred which the judge was to describe the next day in his ruling in this way:
"… during the luncheon adjournment after Mr Divinney [sic], a key witness for the claimants, had given evidence, he, Mr Devinney together with his partner, who live at 15 Anchorage Way, went off to have some refreshment with Mr McDonald, the housing officer and also the solicitor who is acting for the claimant. By then, as I have said, Mr Devinney's evidence was complete, and Miss Young, Mr Devinney's partner, was not a witness who was giving evidence. As they returned to the court between about ten and five to two, what happened was that Mr Connolly was seen to be advancing in a group of people. Then he speeded up and in the words of Mr McDonald, 'made a beeline back towards Mr Devinney and Mr McDonald. When he approached them, close up to them, he stood in a menacing fashion with his arms folded and staring at Mr Devinney. Mr Devinney's partner, Miss Young, was great intimidated, as indeed was Mr Devinney. Mr Devinney pushed his partner through the door of the court and followed smartly afterwards and heard nothing said. Mr McDonald was outside and what he heard from Mr Connolly was the words, 'I'm bad and I'm back'. Those words are admitted by Mr Connolly as having been said. Then, according to Mr McDonald, Mr Connolly said, 'Snob' twice. That is disputed by Mr Connolly, but that is not particularly perhaps offensive. After that, Mr Connolly, according to Mr McDonald, said, 'I'm going for a fucking drink now' and walked off."
Mr Connolly was arrested by the police. He was brought before Judge Thompson QC that afternoon. A solicitor, Mr Thorn, who had acted for Mr Connolly previously in the dispute with Medina, was instructed by Mr Connolly to act for him. He had a brief opportunity to speak with Mr Connolly before he was brought into court. Counsel for Medina, Mr Glen, who also appears before us on this appeal, invited the judge to the hear evidence on what had happened to decide what to do about giving directions for a further hearing. The judge indicated that he would deal with the alleged contempt. He said this:
"I think I should say to Mr Thorn that it is a very difficult situation for you to deal with at such short notice and without really knowing very much about what the evidence will contain. What I think you may wish to do is to reserve cross-examination, rather than cross-examine the witness, unless of course you feel you can deal with anything they say now. You may prefer to reserve cross-examination and I will adjourn the matter until, say, Wednesday or Thursday, in other words beyond tomorrow so that you have adequate opportunity to instruct counsel if you feel it appropriate, or deal with it yourself if you are happy to deal with it yourself."
A little later the judge said to Mr Thorn:
"I appreciate that you have come into this matter at very short notice. It may be better if you hear what is being alleged against your client before you decide to take any particular course. It is up to you, of course, if you want to make representations, but you may feel it better to reserve your position until you have heard what has been said and had an opportunity to take instructions on it."
Mr Thorn indicated that he would accept the judge's guidance. The judge then said:
"Also, you do not know exactly what is going to be said, and nor does he. So, you cannot really prepare a cross-examination when you do not know what is going to come.
MR THORN: Quite, your Honour. I can expect what is to come.
JUDGE THOMPSON: Yes, but what I mean is you do not have a witness statement or anything of that nature, so I think that it is much better if you reserve your position unless, as I said, of course, you want to do otherwise. It is up to you; you are the advocate. I am very happy for you to reserve any cross-examination, and you are in no way prejudiced by doing so.
MR THORN: I would prefer, your Honour, to reserve cross-examination."
After discussion about the date when the hearing would resume, Mr Divinney and Mr McDonald were examined in turn. Cross-examination was reserved. Mr Glen asked the judge if he considered it appropriate for the matter to be dealt with as a potential contempt of court. The judge said he did. There was then further discussion as to the resumed hearing date. Mr Thorn said:
"Your Honour, I am mindful of the fact that Mr Connolly will be in a police station later on. I will have adequate time then to speak to him and take instructions....
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