Patel v Patel
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR. JUSTICE WATERHOUSE |
| Judgment Date | 27 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0727-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1032 |
| Date | 27 July 1987 |
[1987] EWCA Civ J0727-7
Lord Justice May
and
Mr. Justice Waterhouse
87/1032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WALSALL COUNTY COURT
(His Honour Judge Evans Q.C.)
Royal Courts of Justice
MR. EDMUND G. FARRELL (instructed by Messrs Anthony Landes, Hale, Cheshire) appeared on behalf of the Appellant/Plaintiff.
The Defendant did not appear and was not represented.
This is an appeal from an order made by His Honour Judge Evans Q.C. in the Walsall County Court on 24th April 1987.
This is an unfortunate case. It is not a matrimonial dispute properly so called, but it is a family dispute between the plaintiff and his son-in-law, the defendant. It seems that since at least the early part of last year, for reasons which do not appear clearly from the papers, if at all, the defendant has been prosecuting a feud against his father-in-law in various ways, such as trespassing on the plaintiff's home and threatening him in a number of ways such as telephoning him at his home or abusing him either in the street or at work.
It is a not uncommon situation in a matrimonial jurisdiction, but it should not be forgotten that the litigation with which this appeal is concerned is a common law action brought between two parties in respect of allegations of tortious and anticipated tortious conduct in the local county court.
The learned judge, having heard the evidence on 24th April, was satisfied that the defendant was in breach of an injunction (to which I shall refer in a moment) and fined him £25. It is clear from the terms of the learned judge's judgment that although this matter has been going on for a considerable period, on this occasion the judge did not take a serious view of the defendant's conduct.
In so far as the litigation is concerned, the matter started in August 1986 and on 20th August an injunction was made against the defendant in these terms:
"1. [The] Defendant be restrained by himself, his servants or agents from assaulting, molesting or otherwise interfering with the Plaintiff or communicating with the Plaintiff other than through Solicitors.
2. The Defendant be restrained from trespassing upon the Plaintiff's property….. or from approaching within 50 yards of [it]."
On 27th October 1986 there was an application to commit the defendant for breach of that order. That came before the court on 20th November 1986 and the defendant was committed to prison for fourteen days. He purged his contempt a week later, no doubt by apologising, but that did not apparently stop his conduct because a second application was made in January 1987 which was heard by Mr. Recorder Alexander on 27th February 1987. On that occasion the recorder fined the defendant £100.
On this occasion, as I have said, the learned judge fined the defendant £25 and went on to discharge the injunction of 20th August 1986, substituting a more restricted one to the effect merely that the defendant should not assault or molest the plaintiff, or trespass on his property. He expressed the view that that was the most to which he thought the plaintiff was entitled.
In this appeal the first point that Mr. Farrell has taken on the father-in-law/appellant's behalf is that in the circumstances a fine of £25 was inappropriate. He has coupled that with the contention that an appropriate order would have been an immediate or suspended term of imprisonment and with the further contention that the learned judge erred in altering the terms of the original injunction. However it must be made clear, at any rate in my opinion, that in common law actions injunctions can in any event only be an appropriate remedy where an actual tortious act has been or is likely to be committed. A number of the allegations in the various affidavits that are before us do not constitute a tort, nor give any reason for thinking that a tort might be committed, and I have no doubt that it was for this reason...
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