Ronald Brown v London Borough of Haringey

JurisdictionEngland & Wales
JudgeLord Justice McCombe
Judgment Date14 May 2015
Neutral Citation[2015] EWCA Civ 483
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B2/2015/1256(B)/FC3 & B2/2015/1256/CCRTF
Between:
Ronald Brown
Appellant
and
London Borough of Haringey
Respondent

[2015] EWCA Civ 483

Before:

Lord Justice Richards

Lord Justice Lewison

and

Lord Justice McCombe

Case No: B2/2015/1256(B)/FC3 & B2/2015/1256/CCRTF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

Claim No. 3 EC 02367

HHJ David Mitchell (Judgment and Order dated 27.11.2014)

Royal Courts of Justice

Strand, London, WC2A 2LL

Ian Bridge (instructed by Lewis Nedas Law) for the Appellant

Nicholas Grundy (instructed by Legal Department, LB Haringey) for the Respondent

Hearing date: 6 May 2015

Lord Justice McCombe

(A) Introduction

1

The present appeal once again raises questions of the availability of publicly funded legal representation in proceedings for the committal to prison of individuals said to be in contempt of court in failing to comply with court orders and, if such representation is available, as to the authority or court that is competent to order the representation to be provided.

2

After lengthy consideration of tortuous statutory and regulatory provisions, in his judgment of 7 November 2013, Blake J in King's Lynn and West Norfolk Council v Bunning and anor. [2013] EWHC 3390 (QB); [2015] 1 WLR 531 (hereafter " Bunning") decided that, in the contempt proceedings before him, the High Court had power to make an order for public funded representation. In the course of giving judgment in that case, the learned judge made the following observation:

"I consider that the present drafting of that regulation [i.e. regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013] combined with the terms of the prescribed form CRM14 are likely to give rise to very real difficulty within the profession in knowing how to apply for legal aid for contempt proceedings in the High Court and the judiciary in knowing how to determine such applications until the matter is clarified. I would hope that following this judgment thought can be given to making appropriate changes to both so that applicants consulting the Regulations will not have to read this judgment to make sense of them, assuming that it has done so."

Sadly, the judge's hope has not been fulfilled.

3

The judgment in Bunning now enables a suitably informed and legally qualified adviser (as opposed to a lay person), equipped with the statute, the regulations and the judgment, to resolve the conundrum that arises in High Court contempt proceedings. That is not so, however, in County Court proceedings. The question of the availability of legal aid in such proceedings needs to be clear to lawyer and layman alike. It is not. The legislation is disgracefully complex. For this reason, in my judgment, the appellant's entitlement to legal aid in this matter was never properly understood and determined by the legal aid authorities and, in consequence, the proceedings in the court below went wrong.

(B) This Appeal

4

By Appellant's Notice issued on 16 April 2015 Mr Ronald Brown applied to this court for permission to appeal out of time against the order of 27 November 2014 of HH Judge Mitchell, sitting in the County Court at Central London, whereby Mr Brown was committed to prison for a total of 18 months for contempt of court for breaches of injunctions granted in the action on 22 May and 10 June 2014.

5

An appeal lies as of right to this court in respect of an order for committal for contempt. However, a proposed appellant still requires permission to appeal out of time, if he fails to comply with the time limits for bringing such an appeal. The relevant time is 21 days from the making of the order and, however that period falls to be calculated in this case, the Appellant's Notice was at least 4 months out of time by the time it was issued. On Mr Brown's application for an extension of time, the London Borough of Haringey ("the respondent") adopted a neutral position and, at the hearing, Mr Grundy who appeared for the respondent did not oppose the grant of the necessary extension. It seemed to us that, in the interests of justice an extension should be granted. We so ordered at the beginning of the hearing. In the remainder of this judgment I call Mr Brown "the appellant".

6

The appellant also applied to us for a representation order to give him public funding for representation on this appeal. In the absence of such an order, Mr Bridge and his instructing solicitors were acting at risk in the appeal proceedings and I, and I am sure my Lords also, are grateful to them for doing so. I deal with the statutory provisions relating to applications for a representation order in this court later in this judgment. At the beginning of the hearing, however, since we were satisfied that we had jurisdiction in the matter and that it was proper to do so, we granted the appellant a representation order for solicitors and counsel for the appeal, including for the necessary preparation for it.

7

At the conclusion of the hearing, we announced to the parties that, for reasons to be given in writing, the appeal was allowed and that the committal order and the factual findings upon which it was based were quashed. We ordered that the appellant be discharged from custody forthwith. We decided against remitting the case to the County Court, having regard to the fact that Mr Brown had already served over 5 months in custody and counsel for the respondent accepted that it was most unlikely that the respondent would wish to pursue the matter further in the circumstances.

8

The following are my reasons for concurring in the making of those orders.

(C) The Proceedings in the County Court

9

It is not necessary to dwell at length upon the history of the proceedings leading to the making of the orders of 22 May and 10 June 2014. The brief background, however, is as follows.

10

The appellant is now aged 80. His partner (Ms Halina Wilson) was a secure tenant of property at 87 Dukes Avenue, Muswell Hill, London N10. The appellant and Ms Wilson resided at that property until shortly before execution of an order for possession made against them on 10 June 2014 1 at the suit of the respondent. As that order recites, it was made on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, namely non-payment of rent and of nuisance and annoyance to persons in the locality.

11

In advance of that order, on 22 May 2014, HH Judge Mitchell had already granted an injunction restraining the appellant and Ms Wilson from committing various acts of nuisance and anti-social behaviour, including filming or taking photographs of neighbours, using or threatening to use violence, making excessive noise, using foul or abusive language and other kindred acts. The order was continued, as slightly varied, at the time of the making of the possession order on 10 June 2014. The order included a power of arrest.

12

In the period between May and September 2014, the respondent continued to receive reports of anti-social behaviour on the part of the appellant and Ms Wilson and by Application Notice issued on 2 October 2014 the respondent applied to commit both to prison for breach of the orders. By order of HH Judge Freeland QC of 31 October 2014, made on an occasion when the appellant appeared before him in custody having been arrested under the arrest power in the earlier orders, the application for committal was fixed for hearing on 26 November 2014 and directions were given for the service of written evidence.

13

The judge records, in the judgment under appeal (paragraph 69), that the appellant left the Muswell Hill property on 31 October 2014, followed by Ms Wilson on 24 November 2014, the date appointed for execution of the possession order.

14

The underlying problem raised by this appeal is, as I have already said, the position with regard to the funding of the appellant's representation for the committal application which came before Judge Mitchell on 26 November 2014. Before dealing with the background to that I will continue my summary of the course of the committal proceedings themselves.

15

We have a transcript of the hearing. On the first morning (26 November), the appellant attended in person, albeit arriving late at court. Prior to his arrival there had been an unseemly incident in which a member of the public sought to address the court on behalf of Ms Wilson. The judge declined to hear him. Just as the appellant was entering court, the judge was being told by counsel then appearing for the respondent (not Mr Grundy) that the respondent had received a letter from new solicitors for the appellant and Ms Wilson stating that they had been instructed to represent them both and (quoting counsel),

"Applications to the Legal Aid Agency were submitted on 11 th November and they asked the hearing to be adjourned to 17 th December. We refused. We had received a letter from [the]…solicitors, saying we are not in funds, legal aid is pending, we have written to the court requesting we are taken off the record…".

(It is not clear whether or not those solicitors were in fact on the record at any stage.) No questions were asked of the appellant as to what the position was with regard to legal aid or whether he wished to be represented or to have assistance during the hearing, save for the following brief exchange a short time after the passage quoted above:

"JUDGE: …Mr Brown, have you got any representation?

MR BROWN: I have not, your Honour, no.

JUDGE: Right. These are committal proceedings and the position is that there are a number of witnesses who are going to be called to give evidence. You know about that because you were here for a period in May when I dealt...

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