Wright v Jess
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE BINGHAM |
| Judgment Date | 18 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0218-2 |
| Docket Number | 87/0137 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1987 |
[1987] EWCA Civ J0218-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE STUCLEY)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ralph Gibson
and
Lord Justice Bingham
87/0137
Case No. 85/12111
MR. E. CROSS (instructed by Messrs. Clinton Davies & Co.) appeared on behalf of the (Applicant) Respondent.
MR. J. ROBSON (instructed by Messrs. Ronald Fletcher, Baker & Co.) appeared on behalf of the (Respondent) Appellant.
On the 24th October, 1986 His Honour Judge Stucley, sitting at Shoreditch County Court, made an order ex parte on the application of Miss Christine Wright committing Mr. Terry Jess to prison for two years for contempt of court by breaking a non-molestation order. Mr. Jess was arrested pursuant to this order on the 8th January, 1987. It being an ex parte order, Mr. Jess was fully entitled to apply to the judge before or after his arrest for a review of the order in the light of any evidence or representations which he wished to tender with a view to challenging the provisional finding of contempt or mitigating the offence. This was the obvious course to take, but instead Mr. Jess has appealed against the order to this court on the footing that, on the facts then known to the judge, the order should never have been made.
At the conclusion of the hearing, we thought it right to say at once that we would dismiss the appeal in order that there might be no further delay before Mr. Jess made application to the learned judge if, on reflection, he wished to adopt this course. However, since some of the arguments addressed to us were of general interest, we have taken time to put our reasons into writing.
Between 1978 and November 1984 the parties lived together at 27 Ilkeston Court, Overbury Street, London, E.5, and there were three children born of the relationship. At the end of that period Miss Wright moved to 7 Broke Walk, Regent's Estate, London, E.8, taking the children with her. On the 15th January, 1985 Miss Wright began proceedings under the Guardianship of Minors Acts and Judge Stucley made an interim order (a) giving her care and control of the children, and (b) forbidding Mr. Jess to call or attempt to enter 7 Broke Walk. This order was due to be further considered on the 26th February, 1985.
It seems that on the 18th January, 1985 Mr. Jess broke into 7 Broke Walk and thereafter made a not inconsiderable nuisance of himself telephoning to Miss Wright and knocking on the door. On two occasions the police were sent for. As a result he appeared before the learned judge on the 22nd February, 1985 and was committed to prison for fourteen days. He was released on the 5th March.
On the 26th February, 1985 the learned judge granted Mr. Jess access to the children on alternate weekends from the 8th March, affirmed the order of the 15th January and extended the scope of the injunction previously granted to include a prohibition against Mr. Jess assaulting, molesting or otherwise interfering with Miss Wright. No issue arises concerning the validity of this order which has at all times remained in force.
There followed several breaches of the injunction, the most serious of which occurred on the 18th March, 1985 when Mr. Jess broke into 7 Broke Walk during the night and assaulted Miss Wright in her bedroom. In consequence, on the 11th April the learned judge committed Mr. Jess to prison for three months. An application to be allowed to purge his contempt at the end of April having been dismissed, Mr. Jess was released from prison on the 11th June.
Miss Wright's respite from Mr. Jess's attentions was short-lived. On the 28th June, 1985 Mr. Jess molested Miss Wright when she was visiting a market with the children and later assaulted her in a lift. On the 3rd August he removed the two elder children from her care and control and kept them at his home at 27 Ilkeston Court. On the 12th September he called at 7 Broke Walk and molested Miss Wright by banging on her door, making a lot of noise and being abusive.
For these breaches of the court's orders, the learned judge committed Mr. Jess to prison for eighteen months on the 25th September, 1985. Mr. Jess appealed to this court which reduced the sentence to six months. The basis of the decision was that the taking of the children on the 12th September was not as serious as might have seemed at first, since in the weeks immediately prior to that incident there were negotiations between the solicitors for the parties about care, control and access and, but for the incident on the 12th September, it was possible that agreement might have been reached that he should have care and control of the two elder children if he would leave Miss Wright alone.. However, Lord Justice Ackner, with the agreement of Lord Justice Purchas, asked counsel appearing for Mr. Jess on this occasion to impress upon his client that "if there are any further breaches of the court's orders, his prospect of not receiving the maximum which is available for this sort of behaviour is very remote." I do not doubt that this was done.
I now come to the events leading up to the present appeal. On the 30th September, 1986 the learned judge was due to hear a contested application by Mr. Jess to vary the access order to enable him to call at Miss Wright's home at 7 Broke Walk to collect the children for access and for access to be re-defined. The parties met at the court before the hearing and reached agreement. In consequence a consent order was made whereby there was to be access on Sundays between the hours of 10.00 a.m. and 6.00 p.m., the children to be collected from and returned by Mr. Jess to the home of Miss Wright's sister at 49 Adelaide Road, London, E.10. The arrangement was to take effect from Sunday, 5th October, 1986. The injunctive orders of the 15th January and 26th February were continued in force.
On the 21st October, 1986 a notice calling upon Mr. Jess to show cause why he should not be committed to prison for breach of the injunction restraining him from calling at or attempting to enter 7 Broke Walk and assaulting, molesting or otherwise interfering with Miss Wright was issued by the Shoreditch County Court on the application of Miss Wright's solicitors, pursuant to C.C.R. Order 29 rule 1(4). Mr. Jess's address was shown as being 27 Ilkeston Court, Overbury Street, London, E.5. The alleged breaches were particularised as follows:
"Calling at 7 Broke Walk on Sunday 12th October 1986 at between 11.30 and 12.00 noon;
Shouting and being offensive towards the Applicant;
Calling at 7 Broke Walk at 6.00 p.m. Sunday 12th October 1986;
Attempting to enter 7 Broke Walk on Sunday 12th October 1986;
Calling at 7 Broke Walk on Sunday 19th October 1986 at 2.15 p.m.;
Calling at 7 Broke Walk on Sunday 19th October 1986 between 6.30 and 6.45 p.m. and failing to return the children to the care and control of the Applicant on Sunday 19th October 1986."
It appears that the notice was given to a local inquiry agent for personal service on Mr. Jess. On the 23rd October, 1986 he swore an affidavit saying that he had called at 27 Ilkeston Court on eight separate occasions, but had been unable to make contact with Mr. Jess and that neighbours had said that he had not been seen for at least a week. The affidavit is unsatisfactory in that it does not specify what it was that he was trying to serve, although there is no doubt that it was the notice to show cause, nor does it specify the times and dates at which he called.
No other attempt was made to bring the notice to the attention of Mr. Jess. Miss Wright's solicitor telephoned Mr. Jess's solicitor (Mr. O'Callaghan) on the 23rd October, 1986 to tell him that there would be an ex parte application to the court on the following day to withdraw access on the grounds of the events alleged to have taken place on Sunday, 19th October, but made no mention of the application to commit on, inter alia, the same events. In fact it would have made no difference if that application had been mentioned because, according to Mr. Jess, he had moved house on the 20th October and had refrained from telling his solicitors of his new address.
If the matter had stopped there, the learned judge would not have been justified in making a committal order without first considering what further steps could be taken to bring the matter to the attention of Mr. Jess and to give him an opportunity of showing cause. However, the matter did not stop there, for, according to Miss Wright, supported by another witness, Mr. Jess arrived at 7 Broke Walk at 3.00 a.m. on the 24th October and attacked the front door. I say "attacked" because, according to the evidence, there was "heavy banging", the door knob was broken off and there were foot prints on the door itself.
When later in the day the applications to commit and to cancel access came before the learned judge, he gave judgment which is recorded in his notes in the following terms:
" Judgment
In breach of the said orders the respondent did at about 3.00 a.m. on...
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Tan Beow Hiong v Tan Boon Aik
...in exceptional circumstances, to issue an order for her committal in her absence: see Lamb v Lamb ([25] above) and Wright v Jess [1987] 1 WLR 1076. It is not, however, necessary to consider this matter in detail as it does not arise for decision in this case. The conclusion reached thus far......
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Tan Beow Hiong v Tan Boon Aik
...in exceptional circumstances, to issue an order for her committal in her absence: see Lamb v Lamb ([25] above) and Wright v Jess [1987] 1 WLR 1076. It is not, however, necessary to consider this matter in detail as it does not arise for decision in this case. The conclusion reached thus far......
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Roberts v Roberts
...where it is appropriate to commit a person to prison for contempt of court ex parte and without hearing. That was upheld by this court in Wright v. Jess [1987] 1 W.L.R. 1076. It would only be done, no doubt, in the exceptional case, but there is useful guidance to be found in the judgment o......
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Garth Pearce v Milford Trading Company Ltd
...in procedure which justifies setting aside an order for committal. If there is any doubt about that it was made clear by this court in Wright vJess [1987] 1 WLR 1076 at p 1082, following an earlier decision of this court in Linnett v Coles [1987] QB 555. In my judgment, we should now reme......