Williams v Fawcett
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DILLON,MR. JUSTICE MUSTILL |
| Judgment Date | 14 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0214-1 |
| Docket Number | 85/0003 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 1985 |
[1985] EWCA Civ J0214-1
The Master of the Rolls (Sir John Donaldson)
Lord Justice Dillon
and
Mr. Justice Mustill
85/0003
Case No. 8405533
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE FORRESTER-PATON, Q.C.)
Royal Courts of Justice.
MR. QUENTIN IWI (instructed by Messrs. Appleby, Hope & Matthews of Normanby) appeared on behalf of the (Applicant) Respondent.
MR. J.L. MUNBY (instructed by the Official Solicitor) appeared on behalf of the (Respondent) Appellant.
This is an appeal by Mr. William Fawcett against an order made by His Honour Judge Forrester-Paton, Q.C. on the 9th January, 1985 committing him to prison for various terms, totalling in all four months, for five breaches of an undertaking not to molest the respondent to this appeal, Angela Williams, and not to return to her house at No. 60 Tennyson Avenue, Grangetown, Middlesbrough.
The appeal raises two issues. First, should the committal order be set aside for procedural errors? Secondly, is there any requirement that a notice to show cause why a respondent should not be committed to prison be signed by "the proper officer" of the court? At the conclusion of the argument we quashed the order, and I now give my reasons for that decision.
The matter starts with Order 29 rule 1, which is the governing order concerning committals for breaches of injunctions. Although in this case the complaint was of a breach of an undertaking, an undertaking is of course always treated as being the equivalent of an injunction in the like terms. I need not read paragraph (1) of Order 29 rule 1, but I must read most of the other paragraphs. Paragraph (2) provides:
"Subject to paragraphs (6) and (7), a judgment or order shall not be enforced under paragraph (1) unless—
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(a) a copy of the judgment or order has been served personally on the person required to do or abstain from doing the act in question and also, where that person is a body corporate, on the director or other officer of the body against whom a committal order is sought, and
(b) in the case of a judgment or order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act and was accompanied by a copy of any order, made between the date of the judgment or order and the date of service, fixing that time."
That paragraph shows that, subject to the exercise of the dispensing power which is contained in paragraphs (6) and (7), the order containing the injunction, or recording the undertaking, must be served personally on the person who is bound by it. Further, if it involves a positive injunction or a positive undertaking, it has to be served before the time when the act is to be done.
Paragraph (3) reads:
"Where a judgment or order enforceable by committal order under paragraph (1) has been given or made, the proper officer shall, if the judgment or order is in the nature of an injunction, at the time when the judgment or order is drawn up, and in any other case on the request of the judgment creditor, issue a copy of the judgment, or order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2)."
That paragraph refers to what is known as a "penal notice" and it is to be observed that the court has no discretion whether to issue it. It must be issued at the time when the order or judgment is drawn up if that order or judgment is in the nature of an injunction or, in any other case, if and when the judgment creditor so requests.
I now turn to paragraph (4), which is the paragraph with which we have been principally concerned. That reads:
"If the person served with the judgment or order fails to obey it, the proper officer shall, at the request of the judgment creditor, issue a notice calling on that person to show cause why a committal order should not be made against him, and subject to paragraph (7)"—that is one of the dispensing paragraphs—"the notice shall be served on him personally."
I get from that rule the following propositions. First, it is "the proper officer" who has to issue the notice to show cause, and he does so at the request of the judgment creditor. "The proper officer" is a term of art, which is defined in Order 1 rule 3 as follows:
"…'proper officer' means the registrar or, in relation to any act of a formal or administrative character which is not by statute the responsibility of the registrar, the chief clerk or any other officer of the court acting on his behalf in accordance with directions given by the Lord Chancellor."
Similarly that rather strange expression in this context, "the judgment creditor", is a term of art, which is defined in Order 25 rule 1 as meaning "the person who has obtained or is entitled to enforce a judgment or order."
Second, I get from this rule that the notice has to call upon the respondent to show cause why a committal order should not be made; and that, on the authorities, this is a condition precedent to the exercise of the power of committal.
Third, the notice must be served personally, subject to the dispensing power in paragraph (7), which would no doubt be exercised where somebody, having been present in court and having had an injunctive order made against him, committed a breach of the injunction before there was any opportunity to serve him, and there may well be other cases.
The fourth matter I get not directly from the paragraph, but from the paragraph read in conjunction with the County Court (Forms) Rules 1982. This is that the notice must be in form N.78, since by rule 2(1) of the County Court (Forms) Rules it is provided that:
"The forms contained in the Schedule to these Rules"—which includes form N.78—"shall be used in connection with proceedings in county courts to which the County Court Rules 1981 apply, subject to and in accordance with the provisions of this rule."
I should mention that that form contains a space for the seal of the court, and it is also provided under rule 5 of that County Court (Forms) Rules that:
"Every form in the Schedule marked with the word 'Seal' shall bear the seal of the court."
The only remaining paragraphs to which I need refer are paragraphs (6) and (7). Paragraph (6) provides:
"A judgment or order requiring a person to abstain from doing an act may be enforced under paragraph (1) notwithstanding that service of a copy of the judgment or order has not been effected in accordance with paragraph (2) if the judge is satisfied that, pending such service, the person against whom it is sought to enforce the judgment or order has had notice thereof either—
(a) by being present when the judgment or order was given or made, or
(b) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise."
Paragraph (7) provides:
"Without prejudice to its powers under Order 7, rule 8, the court may dispense with service of a copy of a judgment or order under paragraph (2) or a notice to show cause under paragraph (4), if the court thinks it just to do so."
If those powers of dispensation are exercised, this fact has to be stated in the committal order. The authority for that proposition is Nguyen v. Phung [1984] Family Law Reports 773. The ratio of this decision appears to be that since form N.79, which is the committal order form and is also a compulsory form, makes provision in the text for recording when notice of the order was served on the contemnor, if the order was not served on the contemnor, it should be so stated on the form.
I now return to form N.78. As I have already mentioned, it must be sealed, but it is important to note the limited effect of sealing such a notice. Section 134 of the County Courts Act 1984 states:
"(1) All summonses issuing out of a county court, and all such other documents so issuing as may be prescribed, shall be sealed or stamped with the seal of the court.
(2) All such summonses and other documents purporting to be so sealed shall, in England and Wales, be received in evidence without further proof."
So the only effect of the seal is that the document is admissible in evidence without further proof as being what it purports to be.
It is of some significance in the context of form N.78 and the suggestion that it has to be signed by "the proper officer" that there is no space on the form for his signature. By contrast, form N.76, which is a certificate to be indorsed on a duplicate warrant of committal issued for the re-arrest of a debtor, does contain a place where the certificate would be signed by the registrar. It seems, therefore, that where these forms are intended to be signed by someone, there will be a space for them to append their signature. No such space occurs in form N.78 so far as the proper officer is concerned, although in the rather curious layout of the prescribed form there is, as it were, an appendix with space for the bailiff to certify that he has served the notice and for him to sign that certificate. In practice this part of the form is not reproduced when the notice is served otherwise than by the bailiff.
I now turn briefly to the facts of this case. The undertaking was given by Mr. Fawcett in court on the 3rd August, 1984, and was expressed to remain in force for a period of six months expiring on the 2nd February, 1985. The notice to show cause why he should not be committed to prison for breach of that undertaking was given on the 20th November,...
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