Smith v Smith (Contempt: Committal)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE SCOTT |
| Judgment Date | 15 January 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0115-2 |
| Docket Number | 92/0019 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 1992 |
[1992] EWCA Civ J0115-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(MR ASSISTANT RECORDER HALLAM)
Royal Courts of Justice
Lord Justice Nourse
and
Lord Justice Scott
92/0019
MR PHILIP ENGELMAN, instructed by the Official Solicitor, appeared for the Appellant (Defendant).
MRS ELIZABETH E. WALKER, instructed by Messrs Irwin Mitchell (Sheffield), appeared for the Respondent (Plaintiff).
I start by quoting some observations of Lord Justice Cumming-Bruce in Nguyen v. Phung [1984] FLR 773:
"…this is one more case in which the complainant is being deprived of the protection of the law as a result of the ignorance or inefficiency of those in the county court responsible for taking the necessary statutory steps.
I am conscious that the language I have used is strong and unequivocal. My language is deliberately strong for this reason. We have been shown a series of cases, beginning as long ago as 1967 in this court with McIlraith v. Grady [1968] QBD 468 and continuing through a line of cases in this court which never reached the law reports, culminating in two cases in 1979. Throughout the history of those judicial pronouncements, this court has repeated again and again, in relation to proceedings for committal for contempt, that the procedures set out in the County Court Rules and the forms prescribed in the County Court (Forms) Rules must be strictly adhered to."
Except for the additional and even more lamentable feature that since then there have been many further judicial pronouncements to the same effect, some of them in reported cases, those observations apply in their entirety to this case. It is indeed deplorable that this court should have been forced into a position where it has no alternative but to allow the appeal which is now before it.
The plaintiff, Christine Mary Smith, and the defendant, Sean Smith, are mother and son. The defendant is 21 years of age. The plaintiff claims that during the summer of 1990 the defendant locked her and her former husband in a garden shed and attempted to set fire to it, fortunately unsuccessfully. She also alleges that from April 1991 onwards the defendant has committed a series of assaults upon her person and trespasses to her property which have resulted in injury to herself and damage to her property.
On 21st May 1991 the plaintiff issued a summons in the Sheffield County Court against the defendant. On 10th June 1991 Mr Recorder Bowers made an order until trial or further order whereby the defendant was forbidden, first, to beat or assault the plaintiff, secondly, to trespass on her house and premises and, thirdly, to disturb her peaceful occupation at that house and premises. In November the plaintiff issued an application to commit the defendant to prison for breach of that order. By an order made on 21st November His Honour Judge Hunt committed the defendant to prison for three months, suspended until 30th June 1992.
In accordance with the requirements of rule 2(1) and (2) of the County Court (Forms) Rules 1982, Judge Hunt's order was made in the prescribed form, Form N.79. No objection is taken, or could be taken, to that order. In particular it complied with the prescribed form by giving exact details of all the allegations of contempt proved. However, between 23rd and 28th November the defendant committed further breaches of the order of 10th June. The plaintiff therefore issued a further application to commit the defendant, alleging six disobediences of that order. The first three were allegations of disturbing the plaintiff's peaceful occupation of her house; the fourth was an allegation that the defendant had banged and knocked on the plaintiff's door demanding money; the fifth and sixth were allegations of trespass and assault.
The further application came before Mr Assistant Recorder Hallam on 6th December. Both the plaintiff and the defendant were represented by counsel, as they had been on 21st November. The defendant admitted all the alleged disobediences other than the fourth. That admission was made in the first instance through counsel, but the assistant recorder, for reasons which one can well understand, put the allegations specifically to the defendant himself and was satisfied by his answers that he did indeed admit the truth of five of them. The assistant recorder then sentenced the defendant to three months imprisonment on that account and he directed that he also be committed for three months in accordance with the suspended order which had been made on 21st November, such sentence to run concurrently with the first.
It is accepted by Mrs Walker, on behalf of the plaintiff, that the order of 6th December was defective and did not comply with the requirements of Form N.79, in that, departing in this respect from the order of 21st November, it failed to give any details of any of the allegations of contempt proved. That part of the form was simply left blank. The order did, in the space reserved for the listing of the allegations made, set out the details of the five allegations which had been admitted, i.e. it omitted the fourth. What seems to have happened is that the person who prepared the order thought that they would also serve as details of the allegations proved. But that is clearly not so.
Pursuant to the assistant recorder's order a warrant for committal was issued and the order was executed. As it happened, the defendant was already in prison, having been remanded in custody by the justices in connection with a criminal charge. That matter is fixed to come before the justices again tomorrow and it is possible that the defendant will no longer be remanded in custody. There has been some debate as to whether the defendant is being held as a remand prisoner or as one who has been committed for contempt of court. I do not think that that is an important question. Clearly, as things stand at present, were the remand in custody to come to an end tomorrow, then, while Mr Assistant Recorder Hallam's order stands, the defendant will remain in prison by virtue of that order.
The present position is that the Official Solicitor has appealed to this court on behalf of the defendant, contending that the assistant recorder's order is invalid on the ground of its irremediable failure to comply with the requirements of Form N.79. As I have said, Mrs Walker accepts that the order is defective. She submits that it is nevertheless capable of reformation by this court.
I think that when Nguyen v. Phung was decided the power of this court to reform a defective committal order had not been explored beyond the slip rule, which had been held to be inapplicable to such an order; see Cinderby v. Cinderby (unreported) 26th April 1978 (C.A.). However, in later cases—see in particular Hill Samuel & Co. Ltd v. Littaur (No 2) (1985) 135 NLJ 556, and Linnett v. Coles [1987] Q.B. 555–that question was explored. It is now established that this court does, in certain limited circumstances, have power to reform a committal order, either under Order 59, rule 10(3) of the Rules of the Supreme Court or under section 13(3) of the Administration of Justice Act 1960.
Mrs Walker, in my view correctly (see Clarke v. Clarke [1990] 2 FLR 115), does not suggest that the discretion given to this court under the second of those provisions is any wider than that given to it under the first. Although the court undoubtedly has a discretion in the matter, there are now authorities which show not only that the circumstances in which it may be exercised are limited, but that in some circumstances it will not be exercised at all.
For present purposes I need only refer to two of these authorities. In Linkleter v. Linkleter [1988] 1 FLR 360 it was contended that a county court committal order was defective in a number of respects. The order for committal had been suspended on certain conditions and it was so suspended when the appeal came before this court. Counsel for the contemnor advanced four grounds for saying that the order could not stand. The fourth was that it was defective because it did not correspond with Form N.79, in particular because it did not identify in any way the matters of contempt which the judge had found to be proved. Lord Justice Mustill said at page 363B that the court had concentrated on the fourth ground. At page 363D he said:
"I accept, as was accepted by another Division of this court in the case of Re C (A Minor) (Contempt) [1986] 1 FLR 578, that the court does have power under R.S.C. Ord. 59, r. 10(3) to replace an order of a court below with 'such other order as the case may require'. I also accept that, in an exceptional case, this court may use its powers to cure a defective order in a case where a contemnor has not been reduced to custody, and Hill Samuel & Co. v. littaur (1985) 135 New LJ 556 is an example of such a case. All the same, I am of the opinion that the very limited power of...
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