Swindon Borough Council (Appellant/Claimant) v Webb T/A Protective Coatings (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Lewison |
| Judgment Date | 16 March 2016 |
| Neutral Citation | [2016] EWCA Civ 152 |
| Docket Number | Case No: B2/2014/1881 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2016 |
[2016] EWCA Civ 152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWINDON COMBINED COURT
ORDER OF MR RECORDER DE FREITAS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
and
Lord Justice Lewison
Case No: B2/2014/1881
Richard Shepherd (instructed by Law & Democratic Services, Swindon Borough Council) for the Appellant/Claimant
Jason Taylor (instructed by Richard Griffiths & Co.) for the Respondent/Defendant
Hearing date: 18 February 2016
Swindon Borough Council, "the council", brings this unusual appeal pursuant to its powers as a General Enforcer under section 213 of the Enterprise Act 2002 to seek to restrain domestic infringements harmful to the collective interests of consumers. The Respondent/Defendant Frank Webb is a rogue trader. Mr Webb's particular modus operandi is all too familiar. He would call unannounced at the homes of elderly and vulnerable people and pressurise them into permitting him to carry out work of very dubious utility in the nature of spraying weeds on drives and paths, cleaning drives and paths and applying an allegedly protective sealant, sanding block-work and laying asphalt. The cash price for this largely worthless and shoddily executed work frequently increased shortly after his instruction.
Mr Webb was on Thursday 18 February 2016, when this appeal was heard, in prison. He was aware that the appeal was to be heard but did not attend. His interests were represented by his Counsel, Mr Jason Taylor.
In June 2006 the council began enforcement proceedings against Mr Webb with the concurrence of the Office of Fair Trading. An order was made by Judge Wade in the Swindon County Court on 11 July 2006 which in due course was amended by Mr Recorder Moger QC sitting in the same court on 2 April 2007. The operative parts of that Order read:
"IT IS ORDERED THAT …
The Defendant, whether by himself or by instructing or encouraging any other person whether in the course of his business or any other business, refrain from the following and from carrying on any similar course of conduct in the course of his current or future business namely:
1. Contravening section 4 Business Names Act 1985 by not specifying the name of each partner or in the case of an individual, their name on all business stationery.
2. Contravening section 4 Consumer Protection (Cancellation of Contracts Concluded Away from Business Premises) Regulation 1987 by failing to notify consumers in writing of their cancellation rights.
3. Consenting to or conniving in any conduct, or course of conduct, specified in paragraphs 4, 5, 6 and 7(o) and of the Particulars of Claim by:
(a) any body corporate of which the Defendant is (or purports to act as) a director, manager, company secretary or other similar officer
(b) any partnership (whether a limited liability partnership or not) in which the Defendant is a partner
(c) any business in which the Defendant has a controlling interest as defined by s. 222(3) and (4) of the Enterprise Act 2002.
4. An order that the Defendant pay the Claimant's costs of £551.11.
5. Defendant to pay further costs to the Claimant of £847.50, to be paid within 3 months.
IF YOU DO NOT OBEY THIS ORDER YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE SENT TO PRISON"
Both orders were served personally on Mr Webb – the first on 18 August 2006 and the second on 25 April 2007.
In 2014 the council instituted proceedings seeking Mr Webb's committal to prison for contempt of court, relying upon evidence of multiple breaches of the order as amended. The application came before Judge Ambrose in the Swindon County Court on 22 April 2014. He found that Mr Webb had been properly served with the proceedings, although he did not attend, as indeed he had failed to attend on an earlier occasion. In his absence the judge found that on numerous occasions since 2006 Mr Webb had been reminded of his obligations generally and specifically in relation to the order. Having heard evidence from several vulnerable victims the judge found proved four instances of breach of the order. He committed Mr Webb to prison for contempt for four months in respect of each of each of the breaches, the four terms to run concurrently.
The order made by the judge was recorded on standard form N79. That part headed "IMMEDIATE CUSTODIAL ORDER" provided:
" It is ordered that MR FRANK WEBB be committed for contempt to Her Majesty's Prison (be detained under section 9(1) of the Criminal Justice Act 1982) at BRISTOL for a (total) period of 4 MONTHS or until lawfully discharged if sooner, and that a warrant of arrest and committal be issued forthwith.
And the contemnor can apply to the (court) (judge) to purge his contempt and ask for release.
[ And, as the court by order dated dispensed with service of the notice of application for a committal order.
It is ordered that the contemnor be brought before a judge of this court as soon as practicable.]"
I particularly draw attention to the parts scored through. The court had not dispensed with service of the notice of application for committal. On the contrary that notice had been properly served on Mr Webb as recorded by the judge.
A Warrant of Committal to prison on Form N80 was also issued. This provided:
"To • the District Judge and Bailiffs of the Court
• every constable within his jurisdiction
• the Governor (of Her Majesty's Prison at)
On the 22 nd day of APRIL [19][2014]
HIS HONOUR JUDGE AMBROSE (enter name of judge) has ordered that MR FRANK WEBB of 19 HAY LANE, WROUGHTON, SWINDON, WILTS SN4 9QU
should be committed to Prison (detained under Section 9(1) Criminal Justice Act 1982) for a period of 4 MONTHS
You the District Judge and Bailiff are therefore required forthwith to arrest and deliver MR FRANK WEBB
to (Her Majesty's Prison at) BRISTOL
And you, the Governor, are required to receive and keep MR FRANK WEBB safely (in prison) from the arrest under this warrant for a period of 4 MONTHS or until lawfully discharged, if sooner.
[And, as the court by order dated dispensed with service of the notice of application for a committal order,
It is ordered that you, the Governor, bring
before a judge of this court at such time and place as the court shall specify and afterwards, return him to the prison unless the court orders his discharge.]"
I again draw attention to the part of the standard form which was scored through as inapplicable.
On 30 April 2014 Mr Webb was arrested. It would seem that he was arrested on the basis of several warrants, some issued by the Magistrates Court, as well as the warrant issued by Judge Ambrose in the County Court. It would seem that he was brought before the Swindon Magistrates Court, granted bail in respect of those matters the subject of the Magistrates Court warrants and sent to prison on the strength of the County Court warrant.
There is a suggestion in our papers that a judge at Swindon County Court was made aware on 30 April 2014 of Mr Webb's appearance before the Magistrates Court, and that that judge then requested that he be brought before the County Court before being taken to prison.
On 6 May 2014 a Ms Probets of the Swindon County Court staff telephoned Rosemary Heath, a solicitor working in the department of the Director of Law and Democratic Services at the council. She informed her that HH Judge Marshall, the Senior Civil Judge at Swindon County Court, had asked her to issue a Production Order for Mr Webb to return (sic) to court to give him an opportunity to purge his contempt. We have seen no such order. Ms Probets also told Ms Heath that Mr Webb was to be produced at 10 am on Friday 9 May 2014.
On 8 May 2014 at 10.14 hrs Ms Heath emailed a letter to Judge Marshall. In it she asked for clarification as to the nature of the hearing fixed for the following day. She questioned whether Mr Webb had made an application to purge the contempt for which he had been committed and questioned whether the contempt was capable of being purged. She suggested that it might be appropriate for the matter to be listed before Judge Ambrose who, obviously, was fully aware of the background. She complained that the council had not been given notice of "the application" pursuant to the Civil Procedure Rules, by which she meant CPR 81.31, of which more hereafter.
Judge Marshall was not at Swindon County Court that morning but she nonetheless answered Ms Heath by email very promptly, at 10.56 on the same morning. Her email reads as follows:
"Many thanks for your letter. My understanding is that Mr Webb was arrested on several warrants, and should have been brought before the Court at the time of his arrest rather than being taken straight to prison, as he was committed in his absence. He instead appeared before the magistrates and never appeared in the County Court.
I also understood this hearing had been brought forward and was being dealt with today? I am afraid I am not in the office, so you might like to contact the Swindon Civil team to find out whether that is the case, or not."
On receiving that email Ms Heath immediately telephoned the Swindon County Court. Ms Probets was on leave. She spoke to Ms Kemnitz. Ms Kemnitz told her that Mr Webb had been released that morning because he had purged his contempt and she was typing the order which she subsequently emailed to Ms Heath.
Mr Webb had in fact appeared that morning at the Swindon County Court before Mr Recorder De Freitas. The operative part of the Order made by the Recorder reads:
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