Whitter v Peters; Peart v Stewart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,MRS. JUSTICE BOOTH |
| Judgment Date | 21 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1221-3 |
| Docket Number | 81/0506 81–09777 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1981 |
[1981] EWCA Civ J1221-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM LAMBETH COUNTY COURT
(His Honour Judge McDonnell)
Royal Courts of Justice
Lord Justice Ormrod
and
Mrs. Justice Booth
81/0506
8113661 and
81–09777
MRS. N. PEARCE (instructed by Messrs Ronald Fletcher Baker & Co., solicitors, London) appeared on behalf of the Appellants (Respondents).
MISS D. REDGRAVE (instructed by Messrs Michael Cohen, Adams & Co., solicitors, London) appeared on behalf of the Respondent (Applicant) (Ann Marie Whitter).
MRS. J. R. COMYNS (instructed by Messrs Harveys, solicitors, London) appeared on behalf of the Respondent (Applicant) (Marcia Patricia Peart).
These two appeals from committal orders made by His Honour Judge McDonnell at Lambeth County Court raise the same point of law and were heard together. In neither case is there any reference in the grounds of appeal to the merits, so this judgment is confined to the point of law.
In Whitter v. Peters the appellant Peters was committed to prison on 14th October 1981, for a period of four months for breaches of an undertaking given by him to the court on 12th August 1981, to vacate no. 32 Lorne Road, London S.W.9., by 6 pm. on 19th August, 1981, and not to molest the respondent. In Peart v. Stewart the appellant Stewart was committed to prison on 19th October 1981, for a period of six months for breaches of an order dated 2nd July 1981, restraining him from assaulting the respondent, and requiring him to leave no. 26 Cossall Walk, Gordon Road, Peckham, S.E.15., within three days of the service of the order on him and not to return thereto. In both cases the orders were made under the Domestic Violence and Matrimonial Proceedings Act 1976, section 1.
The question of law which arises is whether the judge had power to make a committal order for a period longer than one month having regard to the terms of section 14 (1) of the Contempt of Court Act 1981, which came into force one month after 27th July 1981, the date on which it was passed.
Section 14 (1) is in these terms:
"In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall, (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court."
The appellants contend that the Lambeth County Court is an inferior court within the meaning of this subsection, and that, accordingly, the term of imprisonment should not have exceeded one month.
The respondents submit that the Act does not apply to this species of contempt of court, (sometimes referred to for convenience as 'civil contempt') which arises out of disobedience to an order of the court. Alternatively, they say that insofar as the proceedings in each case are concerned the county court judge, on the true construction of section 19, had the power of a superior court, and that his orders were accordingly valid.
Section 19, so far as it is relevant, reads thus:
""Superior court" means the Court of Appeal, the High Court, the Crown Court, the Courts-Martial Appeal Court, the Restrictive Practices Court, the Employment Appeal Tribunal and any other court exercising in relation to its proceedings powers equivalent to those of the High Court, and includes the House of Lords in the exercise of its appellate jurisdiction".
The first point depends upon the meaning to be given to the words "contempt of court" in section 14 (l). As is well-known, this phrase, though very widely used, has always been a source of confusion. In its original meaning, it no doubt meant what it said, namely, conduct which was contemptuous of the court, but it has come to be used to describe any conduct which might give rise to committal to prison by order of a civil court. So, it has come to comprise widely different kinds of conduct, ranging from insulting behaviour in the face of the court, or conduct which interferes with the due administration of justice to disobedience of orders made by the court. To distinguish these different categories it has become customary to speak of "criminal contempts" and "civil contempts"; the distinction was of considerable importance in the past when different rules applied to each category. There is a useful classification of the different types of contempt in note 52/1/4 to Order 52, rule 1 of the Annual Practice.
The respondents argue that consideration of the Contempt of Court Act 1981, as a whole, shows that it is concerned only with what used to be called "criminal contempts". It is undoubtedly true that sections 1 to 12, inclusive, relate to this category of contempt, and that there is no express reference anywhere in the Act to the power of the court to make what are now called committal orders, but formerly were called orders of attachment, in respect of disobedience of an order of a court requiring a person to do or to refrain from doing some specified act or acts. The same comment may be made on the remaining sections, other than section 14, which they submit is ambiguous.
This argument gains some support from the cross-heading in the Act under which section 14 comes. This reads: "Penalties for contempt and kindred offences". There is authority for the proposition that the power to commit for breach of an order of a court is not a penalty, strictly so-called, and that failure to obey such an order is not properly described as an offence. In Martin v. Bannister 1879 4 QBD 212 and 491 a very strong Court of Appeal (Bramwell, Brett and Cotton LL.JJ.) affirmed the opinion of an equally strong Divisional Court (Kelly CB and Pollak B) that attachment for disobedience to an order of a county court in the nature of an injunction was a "remedy" and not a "penalty". Lord Justice Bramwell said at page 492, "it is said an attachment is not part of the remedy given by the court, but a punishment inflicted for disobedience to an injunction, but that is not really so; it is part of the remedy, which consists of an injunction and consequence attachment. The remedy is, in fact, an injunction enforceable by attachment". Lord Justice Brett, at page 493, said that attachment was part of the "redress". (The distinction between attachment and committal, as a matter of nomenclature, has now been dropped in favour of committal). As recently as 1972, this court, in Jennison v. Baker 1972 2 QB 52, endorsed the views expressed in Martin v. Bannister.
On the other hand, section 14 of the 1981 Act refers to "contempt of court" without any qualification, except with reference to the former extent of the power to commit. The section expressly refers to cases where no limitation previously applied to the period of committal.
The only cases in which the county court formerly had the power to commit for an unlimited period were cases of disobedience to its orders. All its other powers to commit are limited by express statutory provision.
There is considerable force in the submissions of both sides on this point, and they raise important issues which go far beyond the question of the jurisdiction of the county court. Since it is possible, in my judgment, to dispose of these appeals on the respondents' alternative and much narrower submission, I prefer to reserve my opinion on the wider question until it is necessary to decide it.
This narrower submission turns on the construction of section 14 in the light of section 19. The first question is whether the county court is an "inferior court". In view of section 19, the answer must be in the affirmative unless the county court, for the purposes of cases such as these is a "superior court" within the definition of that phrase in the section. It is not necessary to consider any of the other characteristics of inferior courts for present purposes.
The definition of a superior court has been set out at the beginning of this judgment. The question then resolves itself into whether the county court in these cases is "any other court exercising in relation to its proceedings powers equivalent to those of the High Court". This language, whatever it means, contains an unmistakable echo of the provisions now contained in section 74 of the County Courts Act 1959.
Section 74 reads:
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"(1) Every county court, as regards any cause of action for the time being within its jurisdiction, shall—
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(a) grant such relief, redress or remedy or combination of remedies, either absolute or conditional; and
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(b) give such and the like effect to every ground of defence or counterclaim equitable or legal (subject to the provisions of section 65 of this...
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