Smith v Smith
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE |
| Judgment Date | 12 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0612-2 |
| Docket Number | 87/0547 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 1987 |
[1987] EWCA Civ J0612-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH WYCOMBE COUNTY COURT
Royal Courts of Justice
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Balcombe
87/0547
MR WILLIAM EDIS, instructed by Messrs Winter Taylors (High Wycombe), appeared for the Appellant (Defendant).
NO APPEARANCE for the other side.
This is an appeal by John Edward Smith against a sentence of 28 days' imprisonment imposed by Mr Recorder Zucker, Q.C., at the High Wycombe County Court on 5th June 1987. The proceedings were between Yvonne Diana Smith and John Edward Smith. Despite the names, they were not married, but they lived together for some months in 1986 after John Smith moved into the plaintiff's rented cottage at 4 Prospect Place, High Wycombe. Mrs Smith has a son from her previous marriage, who lived with them.
Later in 1986 the relationship came to an end, and on 16th March 1987, on the ex parte application of Yvonne Smith, a non-molestation injunction was granted against a history of allegations by her of assault, breaking windows and threats with an axe, the axe not being brought to the premises for the purpose of threatening but being available there, its purpose being to chop wood.
Following the granting of that injunction it is alleged that there were various incidents. It was said by Yvonne Smith that she was pestered with telephone calls, damage was done to her car, the police had to be called but took no action because the injunction was not made under the Domestic Violence Act and accordingly there was no immediate power of arrest contained in the order. She said that this conduct was affecting her health, and accordingly she applied to commit the defendant.
That application was heard on 5th May 1987. We are told by counsel that on that occasion the defendant conceded that he had been in the garden in breach of the injunction, but he was not asked to deal with the more detailed allegations being made by Yvonne Smith, to which I have referred. The matter went off on the "basis that the defendant would give an undertaking not to go within a mile of the cottage.
As at that point it must have been brought to the defendant's attention how seriously the court regarded his obligation to keep away from Yvonne Smith. That must have been the plain message from the increase in the area from which he was banned. Originally it was just the premises. It became a mile radius from the premises. Furthermore, the defendant was advised by solicitors on the occasion of that hearing.
According to Yvonne Smith things were not a great deal better because in the following months, as she alleged in an affidavit, she experienced various untoward occurrences such as the locks of her car being filled with Superglue, a pile of logs in her garden being thrown away over a hedge, and receiving an extremely unpleasant letter which she says she recognised as being in the handwriting of the defendant. In terms of what occurred later, the most important allegation was that the defendant had come to her premises, pressed his face against the window pane, had been drunk and had waved pieces of paper at her. That incident was said to have taken place on 23rd May. She therefore applied to commit him to prison. It was as a result of that application that this sentence was imposed.
I am bound to say that I find the hearing in many ways unsatisfactory. what happened, according to a note prepared by counsel and signed by the learned recorder, was this:
"(1) That the learned Judge felt entitled to look at all previous affidavits. Glanced at but totally disregarded affidavit of 5th June 1987. Looked at previous affidavits by way of background and not to support the substance of the application.
"(2) Took notice of Defendant's denials and admissions made by and through his Counsel. Did not require Plaintiff's account of matters contained in the first two affidavits to be put to the Defendant by the Plaintiff's solicitor [or by defendant's counsel];
"(3) Required cross-examination by Plaintiff's solicitor on incident of 23rd May 1987 alone and on no other matters;
"(4) Defendant by his Counsel requested that if and insofar as the learned Judge was to be influenced in 'Sentence' by earlier matters these ought to be put to the Plaintiff. Not required to do so."
The hearing having been conducted on those lines and the defendant having admitted that he was in breach of the...
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...at para 12-30: Even where a contempt is proved, it should never be assumed that committal is the natural consequence. In Smith v Smith [1988] 1 FLR 179, the plaintiff obtained a non-molestation order against the defendant when their relationship ended. Subsequently, the plaintiff applied to......
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