Seaward v Paterson
| Jurisdiction | England & Wales |
| Judgment Date | 1897 |
| Date | 1897 |
| Court | Court of Appeal |
Contempt of Court - Breach of Injunction - Person not enjoined or Party to Action - Aiding and Abetting - Committal.
There is a clear distinction between a motion to commit a man for breach of an injunction on the ground that he was bound by the injunction, and a motion to commit a man on the ground that he has aided and abetted a defendant in a breach of an injunction. In the first case the order is made to enable the plaintiff to get his rights; in the second, because it is not for the public benefit that the course of justice should be obstructed.
The Court has undoubted jurisdiction to commit for contempt a person not included in an injunction or a party to the action who, knowing of the injunction, aids and abets a defendant in committing a breach of it.
BY an indenture of lease dated December 13, 1895, the plaintiff William Seaward demised to the defendant George Paterson the first, second, and third floors of the house No. 53, Fetter Lane, in the City of London, for the term of twenty-one years from December 25, 1895, subject to the payment of the rent thereby reserved, and the covenants and conditions on the part of the lessee to be performed and observed. The lease contained (inter alia) a covenant by the lessee that he would not at any time during the term, without the previous consent in writing of the lessor, do or suffer anything which might be noisy, noisome, offensive or inconvenient to the lessor, or the tenants or occupiers of adjoining or neighbouring premises, or which might interfere with the full and quiet enjoyment by the lessor or his undertenants of such adjoining or neighbouring premises, or which should be, or tend or grow to be, an annoyance, nuisance, damage, inconvenience, disturbance or injury to the lessor, or his superior landlord, or his or their tenants or any of them, and also would not during the term use the premises or suffer the same to be used otherwise than for the purpose of a private club, without the previous written licence of the lessor.
The ground floor of the house was occupied as a public-house by William Dennington, who was the assignee of a lease thereof, granted on June 11, 1891, to H. R. Armstrong, for a term of sixty years from June 24, 1891.
This action was commenced in February, 1896, by Seaward, Dennington, and W. L. Colyn, a mortgagee of Dennington's interest in the house under the lease of June 11, 1891, against Paterson as sole defendant, claiming an injunction to restrain him from violating the above covenant by him contained in the lease of December 13, 1895.
It was alleged by the plaintiffs that the defendant had used the premises demised for meetings for the purpose of displays in boxing which caused a serious nuisance to the owners and occupiers of the neighbouring and adjoining houses.
At the trial of the action on July 15, 1896, an order was made, “that the defendant, his undertenants, agents and servant, be perpetually restrained from doing or suffering to be done anything which may interfere with the full and quiet enjoyment of the plaintiff William Seaward, or his undertenants, of the premises adjoining or neighbouring to the first second and third floors of the messuage No. 53, Fetter Lane, demised by the plaintiff William Seaward to the defendant by indenture of lease dated the 13th December, 1895 (including as part of the adjoining or neighbouring premises the portion of the same house demised by lease of 11th June, 1891, to Henry Robert Armstrong and now occupied by the plaintiff William Dennington), or which shall be, or grow to be, an annoyance, nuisance, damage, inconvenience, disturbance or injury to the plaintiff William Seaward, or his superior landlord, or his or their tenants or any of them, and from using the said premises so demised to the defendant, or suffering the same to be used, otherwise than for the purpose of a private club, without the written licence of the plaintiff William Seaward.”
The plaintiffs alleged that on October 9 and October 21, 1896, George Paterson, the sole defendant, had disobeyed this order, by permitting boxing matches upon the premises: and that George Sheppard and Edwin Murray had assisted the defendant in disobeying it; and they moved that the defendant and George Sheppard and Edwin Murray, who were described in the notice of motion as the “agents or servants” of the defendant, might be committed to prison, or that the plaintiffs might be at liberty to issue a writ or writs of attachment against the defendant, and against Sheppard and Murray, for their contempt in having disobeyed, and aided and assisted in disobeying, the order of the Court dated July 15, 1896.
There was evidence that a copy of the order of July 15, 1896, was served on Sheppard on October 14, 1896, and that a copy of the order was served on Murray on November 9, 1896. North J. held upon the evidence that Murray was fully acquainted with the terms of the order immediately after it was made, and that Sheppard was fully acquainted with its terms before the days when it was alleged that the injunction had been disobeyed. The learned judge held that Sheppard had taken part in the disobedience as the servant of the defendant or of Murray, and that Murray had knowingly assisted the defendant in disobeying the order.
The motion came on for hearing before North J. on February 5, 1897.
Swinfen Eady, Q.C., and Methold, for the plaintiffs. The defendant has clearly committed a breach of the injunction, and Sheppard acted as his servant or agent on the occasions in question. He had full knowledge of the injunction. Murray was really the prime mover in the offence. He chose to assist in the doing of that which he well knew was prohibited by the injunction, and, though he is not a party to the action, he is liable to be committed — technically not for a breach of the injunction, because he was not enjoined, but for his contempt of Court in aiding and abetting Paterson in disobeying the order: Lord Wellesley v. Earl of Mornington.F1
Seward Brice, Q.C., Stephen Lynch, and R. Ker Kays, for Murray. There is no jurisdiction to commit for breach of an injunction in such a case as this a person who is not enjoined by it, who is not a party to the action, and who is not even a servant or an agent of the person who is enjoined. There has been no contempt by interference with an officer of the Court. No one who is not a party to an injunction and enjoined by it can be committed for a breach of it. The proper remedy is to apply for an injunction against the persons whose acts are complained of: Barlee v. BarleeF2; Iveson v. HarrisF3; In re Bahama IslandsF4; Montague v. Hill.F5 When plaintiffs sue on behalf of themselves and other members of a class, an injunction in the common form protects only the plaintiffs actually named on the record: Armitstead v. DurhamF6; Lund v. Blanshard.F7 In Lord Wellesley v. Earl of MorningtonF8 the person who was committed was an agent of the defendant, and he was committed because he was an agent. This is the only instance to be found of an agent being committed for disobedience to an order. The words “servants and agents” are usually inserted in orders for an injunction, and they are inserted by way of warning to the person enjoined that he will be liable for the acts of his servants and agents.
Avery v. AndrewsF9 is distinguishable from the present case. The trustees who were committed there were not mere outsiders, and there had been an attempt to evade the order of the Court. An order for an injunction is not an order in rem; it is binding only upon the parties to it. In Hodson v. CoppardF10 an injunction was granted to restrain the defendant, his servants and agents, from committing a breach of a restrictive covenant as to the use of a house, but the Court refused to extend the injunction to the defendant's tenants. In St. John's College Oxford v. CarterF11 the person who was committed for aiding and abetting in the breach of an injunction was himself a defendant to the suit. Murray should have been made a party to the action: Day v. Longhurst.F12 The extraordinary process of committal for contempt ought not to be invoked when there is any other remedy: In re Davies.F13
The evidence is not sufficient to prove that Murray did anything which would have been a breach of the injunction if he had been bound by it.
George Sheppard, in person.
The defendant Paterson did not appear.
Methold, in reply. A mere occupier can be restrained from using a house in a way forbidden by a restrictive covenant of which he has notice: Mander v. FalckeF14; and so too can an underlease, even if he had no notice of the covenant when he took his underlease: Clements v. Welles.F15
Feb. 9. NORTH J., after stating the facts, continued:— Beyond all question there has been a breach of the injunction by the defendant. It is quite clear that, after the injunction was granted, it was the duty of the defendant Paterson to prevent such proceedings as these from taking place upon the premises of which he is the lessee. Obviously...
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