The Secretary of State for Transport v Elliott Cuciurean
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 16 October 2020 |
| Neutral Citation | [2020] EWHC 2723 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No PT-2020-BHM-000017 |
| Date | 16 October 2020 |
[2020] EWHC 2723 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST
The Birmingham Civil Justice Centre
33 Bull Street
Birmingham B4 6DS
THE HONOURABLE Mr Justice Marcus Smith
Case No PT-2020-BHM-000017
Mr Michael Fry (instructed by DLA Piper UK LLP) for the Applicants
Mr Adam Wagner (instructed by Robert Lizar Solicitors) for the Respondent
Hearing date: 16 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
. I handed down judgment on liability in this matter on 13 October 2020 under Neutral Citation Number [2020] EWHC 2614 (Ch). This judgment deals with the question of sentence consequent upon my finding that the Respondent, Mr Cuciurean, was in breach of the order of Andrews J, when he committed Incidents 1 to 3 and 5 to 13, as I have described them in my judgment on liability. All of these incidents involved breach of paragraph 4.2 of the Order, which enjoined entry upon what was known as the Crackley Land.
. This judgment on sanction takes my earlier judgment on liability as read and adopts the terms and definitions set out in that judgment.
. Before I can proceed to the question of sanction, however, there is an important rider to my judgment on liability, which I must deal with. In his helpful written submissions to me, which I received yesterday evening, Mr Wagner, counsel for Mr Cuciurean, noted that my judgment on liability (handed down on 13 October 2020, in advance of this hearing, at the invitation of Mr Cuciurean) straddles two sets of Civil Procedure Rules regarding contempt and committal. The old rules in CPR Part 81 have been replaced with a new CPR Part 81 with effect from 1 October 2020. That has been done by the Civil Procedure (Amendment No 3) Rules 2020, SI 2020/747.
. The rules in old CPR Part 81 have been substantially revised, albeit that the difference, at the end of the day, may in practice be minimal. (Mr Fry, when reviewing what had been done procedurally prior to 1 October 2020 in light of the new rules, suggested that very little would have had to have been done differently.) The Practice Direction that was appended to the old CPR Part 81 has been revoked and not replaced.
. Somewhat surprisingly, the new provisions contain no relevant transitional or saving provisions. Mr Wagoner, quite properly, has raised the implications of this for my attention. He is entirely right to have done so, and it seems to me that I need, in this ruling, to make clear why I consider that the new CPR Part 81 provisions make no difference to the terms of the judgment on liability that I handed down a few days days ago.
. In my judgment, there are three aspects of the contempt jurisdiction as covered by CPR Part 81 potentially in play. Going through them, they are as follows:
(1) First, there are the provisions of CPR Part 81 that inform the Order that was made by Andrews J. Andrews J's Order was, of course, made prior to the coming into force of the new CPR rules. It seems to me absolutely clear, and was not gainsaid by either counsel appearing before me, that the Order made by Andrews J must be read and considered in the light of the law as it stood at the time of that Order. Any other conclusion would give an utterly unwarranted retrospective effect to the new rules and that cannot possibly have been intended without the clearest of language (and even then may have been ultra vires the rule-maker). Such clear language in no way appears in the new CPR Part 81.
That, as it seems to me, is the most important point to make in relation to the new rules. The bulk of my judgment on liability, insofar as it dealt with the CPR Part 81, considered the provisions of CPR Part 81 in the light of the Order that Andrews J had made. Those parts of the judgment must stand, whatever the new provisions of CPR Part 81 say.
(2) The second aspect of the new CPR Part 81 that I must consider concerns provisions relating to the procedure or process that has informed these proceedings and this application to date. It is obvious that this application was commenced and substantially heard before the new rules came into force. The dates of the hearings before me are 30 and 31 July and 17 September 2020. It is really only the judgment on liability – handed down on 13 October 2020 – that is caught by the new rules. Thus, all of the procedural steps in this application pre-date the new CPR. It seems to me that steps taken in the application, insofar as they were formal steps prior to 1 October 2020, are matters that must be governed by the old rules of process and not the new. I am not sure that it necessarily matters in the light of the judgment that I handed down on 13 October 2020, but it seems to me clear that it would, again, import a measure of retrospectivity if the Claimants (or, indeed, Mr Cuciurean) were to be criticized or to fall foul of rules that post-date the very application that they have made or been involved in.
(3) The third aspect of the new CPR Part 81 relates to the process going forward, that is to say to matters post-dating 1 October 2020. That process, unsurprisingly, substantially concerns sanction. So far as this aspect is concerned, it seems to me that Mr Wagner is right when he says that the process going forward must be informed by the new rather than by the old rules to the extent that they affect the matters before me. I say that with a measure of trepidation, because ordinarily one would expect this to be dealt with in transitional provisions, which make precisely clear how far the old rules govern old (already commenced) processes and how far the new rules govern old (already commenced) processes. But that has not happened in this case. Although I do not think the new rules affect the matters under consideration before me today, I make clear the approach that informs me, to the extent that there is a mismatch or difference between the old and the new rules. The approach that I would take, were there such a mismatch – and I do not think there is – would be to apply the rules that are most beneficial to Mr Cuciurean. In other words, if there has been a relaxation in terms particularly of sanction in the new rules, then I should apply the new rules. But, equally, if the old rules were to be more beneficial to Mr Cuciurean, then I fail to see why he should be disadvantaged merely by the fact that the timing of my judgment on liability and the timing of this judgment was after and not before 1 October 2020.
. I say this by way of expansion and enlargement of my judgment on liability. I find, for the reasons that I have given, that there is no need for any substantive change to that judgment to reflect the new rules that have helpfully been brought to my attention.
. I turn, then, to the question of sanction. In my judgment on liability, I found that Mr Cuciurean had intentionally breached the Order on 12 separate occasions; and was in contempt of court in those respects. It is my duty today to sentence him for those contempts.
. The court has a broad discretion when considering the nature and length of any penalty for civil contempt. It may impose: (i) an immediate or suspended custodial sentence; (ii)an unlimited fine; or (iii) order sequestration of assets: Londono (ed), Arlidge, Eady & Smith on Contempt, 5 th ed (2017) at [14-1].
. The court's discretion should be exercised with a view to achieving the purpose of the contempt jurisdiction. In Willoughby v. Solihull Metropolitan Borough Council, [2013] EWCA Civ 699, Pitchford LJ suggested that that purpose was threefold: (i) punishment for breach; (ii) ensuring future compliance with the court's orders; and (iii), linked with (ii), rehabilitation of the contemnor (at [20]).
. In McKendrick v. The Financial Conduct Authority, [2019] EWCA Civ 524, the Court of Appeal said that the first step in the analysis is to “consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order” (at [39]).
. A range of mitigating/aggravating factors then arise for consideration in that analysis. These include, but are not limited to those set out in The Financial Conduct Authority v. McKendrick [2019] EWHC 607 (Ch) at [23]: 1
(1) Whether there has been prejudice as a result of the contempt, and whether that prejudice is capable of remedy.
(2) The extent to which the contemnor has acted under pressure.
(3) Whether the breach of the order was deliberate or unintentional.
(4) The degree of culpability.
(5) Whether the contemnor was placed in breach by reason of the conduct of others.
(6) Whether he appreciated the seriousness of the breach.
(7) Whether the contemnor has cooperated. A genuine offer following judgment but before sentence to cooperate in the provision of information is capable of being a serious mitigating factor.
(8) Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea. By analogy with sentencing in criminal cases, the earlier the admission is made, the more credit the contemnor is entitled to be given.
(9) Whether a sincere apology has been given for the contempt.
(10) The contemnor's previous good character and antecedents.
(11) Any other personal mitigation that has been advanced on his behalf.
. Pausing there, McKendrick was what I would call an “ordinary” case of civil contempt. It was a breach of an order arising out of proceedings not involving questions of free speech or the...
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