Nicholls v Nicholls
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 20 December 1997 |
| Judgment citation (vLex) | [1996] EWCA Civ J1220-4 |
| Docket Number | CCRTF 96/0750/G |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1997 |
The Master of the Rolls
(Lord Woolf)
Lord Justice Auld
Lord Justice Ward
CCRTF 96/0750/G
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(HIS HONOUR JUDGE KING)
Royal Courts of Justice
Strand
London WC2
MR N COLE (Instructed by Messrs Middleton Dummer, West Midlands, B69 4QX) appeared on behalf of the Appellant.
MR R ROWLAND ( MR P EDWARDS 20.12.96) (Instructed by Messrs March & Edwards, Worcester) appeared on behalf of the Respondent
MR H KEITH appeared on behalf of the Amicus.
This judgment, which I have prepared, is a judgment of the Court.
On this appeal it is necessary to consider the effect of procedural irregularities on the validity of committal orders. It is an area where there has been a change of emphasis in the approach of this court in recent years. Because of this it is desirable for this court to review fully the previous authorities on this subject in the hope that it will be possible to provide greater clarity than exists at present as to the state of the law. For this reason the Attorney General was invited to instruct an amicus to assist the court. He instructed Mr Hugo Keith and we are grateful for the help which he and his instructing solicitor, the Treasury Solicitor, have provided.
The Facts In This Case
In these proceedings Angela Mary Nicholls ("the wife") is the petitioner and Sydney John Nicholls ("the husband") is the respondent. They were married on the 20th August 1989. There is one child who was born on the 2nd January 1991. The husband is a self employed metal trader and his wife runs her own photographic business. There is no dispute that the relationship between the husband and wife is extremely acrimonious. The wife commenced divorce proceedings by a petition dated 10th February 1995 alleging unreasonable behaviour. The husband denied her allegations and filed an answer dated 2nd March 1995 but subsequently allowed the petition to proceed undefended.
On the 9th March 1995 the wife applied for an injunction preventing the husband from molesting her. This was followed by a further application by the wife for an injunction restraining the husband from disposing of the contents of the matrimonial home and two motor cars.
At the Worcester County Court on the 22 March 1995 the husband gave two undertakings. The first (the non molestation undertaking) was not to pester, harass or otherwise interfere with the wife and the second:
"Not to dispose of, sell, charge or transfer within the jurisdiction or otherwise deal with the contents of the matrimonial home" (the contents being detailed in the attached valuation and an inventory). or with "a Vauxhall motor car."
Both undertakings were reduced to writing and signed by the husband under a statement which read:
"I understand the undertaking I have given, and that if I break any of my promises in the Court I may be sent to prison for contempt of Court."
The wife applied for an order committing the husband to prison for breaching the undertakings. That application was heard by His Honour Judge Mott on 6th April 1995. The judge found that one of the allegations relied upon by the wife namely moving certain of her property from the former matrimonial home was not established because the husband may well have removed the articles before he gave the undertaking. However with regard to an allegation of harassment and pestering of the wife the judge found this was established and fined the husband £250.00.
On the 27th July 1995 the wife made a further application to commit the husband for contempt for breaching the undertaking of the 22nd March not to molest her based on a series of allegations commencing on the 13th April and ending in July 1995. This was followed by a further application on the 18th August 1995 also relying on alleged breaches of the same undertaking between the 3rd April and July 1995. On the 6th September 1995 the husband was sentenced to two months imprisonment for 8 breaches of the non-molestation undertaking of the 22nd March 1995 but this was suspended for one year on condition that he did not pester harass or otherwise interfere with the wife. The suspended order was made by His Honour Judge Smythe. He found proved the first, second, fourth, seventh eighth and ninth of the allegations made in the application of the 27th July (but not the third fifth and sixth) and found proved the second and third allegation in the additional application made on the 18th August 1995.
On the 1st March 1996 the wife was granted an injunction restraining the husband from disposing of the contents of the former matrimonial home by District Judge Dickinson. This prolonged sequence of applications and orders continued and on the 5th March 1996 the wife made an application for:
1. an order committing the husband to prison for breaching the undertaking of the 22 March 1995 not to dispose of the contents of the matrimonial home, by removing those contents from the home prior to the 28th February 1996.
2. the suspended committal order made by His Honour Judge Smythe to be activated on the grounds that the husband had harassed the wife on five different occasions.
On the 15th March 1996 His Honour Judge King only found proved the final incident of harassment alleged in the application of the 5th March 1995. Having done so he ordered 2 months imprisonment imposed by His Honour Judge Smythe to be served and in addition passed an additional sentence of 14 days imprisonment in respect of the final incident of harassment to be served consecutive to the 2 months imprisonment, making a total of 2 months and 14 days imprisonment.
The husband having commenced to serve his period of imprisonment at HM Prison Blakenhurst, made an application from the prison to purge his contempt. On the following day he supported his application by writing to the judge stating how much he regretted his behaviour and indicating that his imprisonment had been "a real devastating shock to my system".
The husband's application to purge his contempt was dismissed by His Honour Judge Morris on 29th March 1996. The Official Solicitor's office drew the husband's solicitors attention to the fact that the committal order was defective. Instead, after Legal Aid had been obtained, on the 4th April 1996 notice of appeal was given. This was followed by a hearing before Lord Justice Ward on the 10th April 1996 when the husband was granted bail.
The Grounds of Appeal
The notice of appeal sets out three different grounds. They are as follows:
"1. That the committal order dated the 15th March 1996 in form N79 failed to give proper details of the Contempts found proved.
2. That the Committal Order served on the 15th March 1996 did not state the Order in that His Honour Judge King did not find Breach of the Undertaking dated 22 March 1995 or the specific Acts relied upon.
3. That on the whole of the evidence the learned judge failed to pay sufficient regard to the fact that Committal to Custody is an Order of final resort and the Sentence of 2 months 14 days as a whole was excessive."
Although this is not relied upon in the Notice of Appeal, the consecutive sentence of 14 days imprisonment was clearly defective since it was imposed in relation to the only breach proved of the allegations relied upon by the wife as constituting a breach of the terms imposed by His Honour Judge Smythe on the 6th September 1995 as a condition for his suspending the order of 2 month imprisonment. This condition was that the husband was not to pester, harass or otherwise interfere with the wife. The husband did so, and this was a ground for activating the 2 months imprisonment but it was not alleged to be a separate contempt which if proved would justify imposing an additional sentence as well as activating the 2 months imprisonment. What the judge did was not to sentence the husband twice over for the same matter since the sentence of 2 months imprisonment was in relation to earlier breaches of the undertaking of the 22 March 1995. It would therefore have been open for the wife to include in her application of the 5th March 1996 an allegation that the further harassment was a breach of the original undertaking of the 22 March 1995. No such allegation was included in the application. Instead reliance was placed upon an alleged breach of the other undertaking which was given on the 22 March 1995 but the breach of that undertaking was not found proved. It follows therefore that the sentence of 14 days imprisonment has to be set aside.
The Defects in the Notices of Committal
Both the suspended committal order of the 6th September 1995 (the suspended committal order) and the committal order of the 15th March 1996 are defective. In drawing up both orders form N79 was used. This is the correct county court form for this purpose. However the suspended committal order recites that the husband is guilty of contempt by telephoning the wife at her work on 5 occasions. This was the sixth allegation in the wife's notice of application to commit of the 27th July 1995. That is an allegation which His Honour Judge Smythe found was not proved. The incorrect inclusion of this "finding" could not have prejudiced the husband because His Honour Judge Smythe imposed a separate sentence of 2 months imprisonment in respect of each allegation. We observe on even closer examination of the order that, having included this breach which was not proved, the order failed to include the last allegation in the additional application which was...
To continue reading
Request your trial
-
“Dear Judge, I am writing to you because I think it's pathetic”: Re A-H (Children)
...its orders are upheld” has been approved in a variety of judgments concerning uncooperative litigant behaviour.22Nicholls v Nicholls [1997] 1 WLR 314 at 326, cited in e.g. Re M (A Minor) at para 31; Amberley Construction Limited v Beamish [2003] EWCA Civ 1267 at para 27; Medina Housing Asso......
-
Guidelines on Sanctions for Breach: Hale v Tanner
...Author’s inverted commas. It is questioned whether dealing with a person for breach of a civil ordershould be called ‘sentencing’.9 [1997] 2 All ER 97.July 2001] Hale vTannerßThe Modern Law Review Limited 2001 committal to prison for contempt of court. The facts and outcome are notimportant......