R (MSA) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 12 October 2009 |
| Neutral Citation | [2009] EWHC 2474 (Admin) |
| Docket Number | Case No: CO/3337/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2009 |
[2009] EWHC 2474 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : Mr Justice Collins
Case No: CO/3337/2009
Christopher Buttler (instructed by Bennett Wilkins) for the Claimant
Peggy Etiebet (instructed by DMH Stallard LLP) for the Defendan
Hearing dates: 5 June 2009
Mr Justice COLLINS :
I was asked by counsel for the claimant in this case to direct that a penal notice in accordance with R.S.C. 0.45 Rule 7(4) be endorsed on the Order I was making against the defendant. I decided, whether or not the Rule applied, that such a notice was unnecessary, but I indicated that I would consider, having received written observations on the point, whether in general such a notice was needed in order to enable the court to deal with failures to comply with its orders under R.S.C. Order 52 by means of proceedings for contempt or for sequestration.
It is not and has never been the practice of the Crown Office or of the Administrative Court to include a penal notice in its orders, whether in the form of injunctions or mandatory or prohibitory orders. Prior to the extension of the powers of the court in the Supreme Court Act 1981 and the revised R.S.C. Order 53, following the decision of the House of Lords in O'Reilly v Machman [1983] 2 A.C. 237, because it was not possible to obtain injunctive relief against the Crown and judicial review was limited to the obtaining of one or other of the prerogative orders, it was not unusual to seek relief against public bodies other than the Crown by ordinary actions for injunctions or declarations. That now is not possible, at least in circumstances where a public body's decision is sought to be overturned or it is to be compelled to take action in its public capacity. There are, of course, claims that are purely private law claims (for example, claims in tort or for breaches of contractual obligations) which may fall within R.S.C. 0.45, but I am concerned only with orders made by the Administrative Court.
R.S.C. 0.45.5(1) provides:-
“Where –
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time ….; or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act …”
the judgment or order may be enforced by inter alia committal of an individual or, where the order is directed at a body corporate, of a director or other officer or sequestration of its assets. A fine is an alternative to committal. 0.45.7(2) and (3) require personal service of the relevant order on an individual or, if the person subject to it is a body corporate, on the officer against whom any committal may be sought.
7(4) provides:-
“There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible.”
While 'body corporate' is not defined, it is clear that the expression is not limited to companies. Thus CPR 39.6 states that 'a company or other corporation may be represented at trial by an employee' subject to certain conditions. Corporations may be aggregate or sole. An example given of a corporation aggregate is a local authority and it is to be noted that some Secretaries of State are corporations sole. While the latter are also individuals who are named as defendants by virtue of their office, they may have personal involvement in ensuring obedience to the courts' order. Thus prima facie a local authority and I suspect any defendant against whom an order to take or to abstain from taking any action is made by the Administrative Court is covered by the language of R.S.C. 0. 45 r7.
So far as I am aware, the point has never been taken by a defendant against whom contempt proceedings have been taken that the order was defective. Admittedly, it is very rare for orders not to be obeyed and (subject to one very recent case involving a Chief Constable) it is unknown for there to be a refusal to obey. It is only if administrative incompetence creates a failure to obey an order that...
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