Nguyen v Phung
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE GRIFFITHS |
| Judgment Date | 25 May 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0525-1 |
| Date | 25 May 1984 |
| Docket Number | 84/0216 |
| Court | Court of Appeal (Civil Division) |
[1984] EWCA Civ J0525-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
(His Honour Judge Garfitt)
Royal Courts of Justice
Lord Justice Cumming-Bruce
and
Lord Justice Griffiths
84/0216
MR. JAMES MUNBY (instructed by the Official Solicitor) appeared on behalf of the Appellant/Respondent.
The applicant did not appear and was not represented.
This is an appeal, subject to the court having given leave to appeal out of time, in contempt proceedings whereby, pursuant to an order of committal dated 10th April 1984, the learned judge in the Cambridge County Court committed the contemnor to prison for contempt for a determinate sentence of six months.
The grounds of appeal are that the rules providing for service of notice of the application for committal and the rules relating to the content of the committal order itself were not obeyed by the county court; a term which comprises the learned judge, insofar as it is his responsibility to be personally concerned with forms of notices and orders, the registrar and officers of the county court concerned with matters of service of prescribed notices and with the drafting and issue of orders for committal made in the county court.
This appeal raises a matter of real, practical importance in relation to the practice of the county courts in England and Wales. For reasons which I will explain it is quite plain that the order for committal was bad because in material particulars it failed to comply with the statutory prescribed form and further that, on the face of the committal order, the notice of the application for committal was never served on the alleged contemnor and there is no indication of any order by the county court dispensing with such service.
These matters of procedure in the instant appeal might have been regarded as unusual and exceptional failures to understand and comply with the relevant rules: but that, as emerges from what we have been told by counsel for the Official Solicitor, would be a mistaken impression.
The court has had the advantage of a submission from Mr. Munby of counsel, appearing on the instructions of the Official Solicitor, and he has told the court of his personal experience in contempt proceedings over a period of some six years, when acting on instructions of the Official Solicitor. It emerges that, in spite of repeated judgments in this court drawing the attention of county courts to the importance of complying strictly with the procedural rules, compliance with which alone enables a valid committal order to be made, and, in spite of action taken by the Lord Chancellor to bring to the notice of county courts the vital importance of complying with the rules in the case of orders prejudicing the liberty of the subject, lamentably there is still an astonishing laxity or ignorance in the county court officers' appreciation of their statutory duty, as is quite clearly set out in the rules and statutory forms, with the result that, with a frequency which is as astonishing as it is outrageous, time and time again orders for committal for breaches of orders made by the court and otherwise have had to be set aside and sentences quashed, with the consequence that complainants are being deprived of the proper protection of the law.
I can express no final view on the merits of this case, but on the facts deposed to in the affidavit of the complainant this would appear to be a case in which she urgently required the protection of the court in order to take the appropriate steps to see that the injunction which the court had issued for her protection was being enforced. As, for the reasons which I am about to state, the committal order was bad, for which the complainant personally has no responsibility, this is one more case in which the complainant is being deprived of the protection of the law as a result of the ignorance or inefficiency of those in the county court responsible for taking the necessary statutory steps.
I am conscious that the language I have used is strong and unequivocal. My language is deliberately strong for this reason. We have been shown a series of cases, beginning as long ago as 1967 in this court with McIlraith v. Grady [1968] QBD 468, and continuing through a line of cases in this court which never reached the law reports, culminating in two cases in 1979. Throughout the history of those judicial pronouncements, this court has repeated again and again, in relation to proceedings for committal for contempt, that the procedures set out in the County Court Rules and the forms prescribed in the County Court Forms Rules must be strictly adhered to.
Since 1967, as far as we know, the judgments in this court on the subject, and their appeals to the county courts to give them most careful attention to ensure that every order for committal is valid by reason of compliance with the statutory process, have not been reported; and so it may be that it is only the Official Solicitor and counsel instructed by him who have hitherto appreciated the alarming way in which the clear guidance given by this court in 1967 has been forgotten or disregarded. I venture to express the hope that sufficient publicity will be given to the judgments in this appeal in order to end what appears to be an alarming anomaly, namely that, in spite of repeated pronouncements from this court and an instruction from the Lord Chancellor, it is still necessary quite frequently to quash orders for committal on the ground that the procedure in relation to bringing into existence valid orders for committal has been slapdash and contrary to law.
I would direct that copies of the judgments in this case be brought to the attention of the Lord Chancellor so that he may decide whether it is necessary or desirable to make another attempt to bring to the notice of the county courts the...
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