Neutral Citation no.[2001] NICh 1
Ref:
GIRL3086

 
Judgment: approved by the Court for handing down
Delivered:
16.01.2001
(subject to editorial corrections)

 
2000 No 1001
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
CHANCERY DIVISION
------- 
IN THE MATTER OF LAND AND PREMISES SITUATE AT AND KNOWN AS
94 WESTWAY, LONDONDERRY BT48 9NT
BETWEEN:
NORTHERN IRELAND HOUSING EXECUTIVE
Plaintiff;
and
 
JUNE FARREN (ALSO KNOWN AS JUNE DEERY)
First-named Defendant;
and
 
MARK KEHOE
Second-named Defendant;
and 
 
PERSONS UNKNOWN
 
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GIRVAN J
JUDGMENT
INTRODUCTION
            This is an application brought the plaintiff (“the Executive”) to commit the second-named defendant Martin Kehoe to prison for contempt of court in continuing to be and remain in occupation of premises known as 94 Westway, Londonderry BT48 9NT (“the premises”) in breach of an order of this court made on 11 April 2000 (“the primary order”) which required the defendants to forthwith deliver up the premises and entitled the Executive to recover possession of the premises.  On 29 September 2000 this court on the application of the Executive made an order that the second-named defendant should be committed to prison for 14 days but the court directed that that order should not be enforced if he delivered up possession of the premises on or before 5 October 2000.  The second-named defendant has not delivered up possession of the premises and continues in occupation.
THE FACTUAL BACKGROUND
            The premises belong to the Executive.  The defendants without the licence or consent of the Executive unlawfully entered into possession of them and notwithstanding the Executive’s request to vacate the premises they continued to occupy them.  The Executive on 28 March 2000 issued a summons under Order 113 against the first and second defendants and persons unknown seeking recovery of possession of the premises.  By the primary order the court ordered that the Executive do recover possession of the premises and ordered that the first-named defendant June Farren (also known as June Deery) and second-named defendant do forthwith deliver possession of the said lands and premises.
            The said order was served personally on the named defendants on 30 March 2000 with a penal notice in the following form:-
“If you, the within named June Farren (also known as June Deery) and Martin Kehoe do not obey this order you may held in contempt of court and may be sent to prison.”
 
            The Executive’s legal department wrote to the second-named defendant on 15 May 2000 stating in terms:-
“The court order that was served upon you contained a penal endorsement.  The Executive now intends to commence legal proceedings for your committal to prison for contempt of court.  When these proceedings are served, you may wish to consult with a solicitor, as you would be entitled to legal aid in relation to the committal proceedings.”
The Housing Officer for the area called at the premises on 15 May 2000 when he was advised by the second-named defendant that he had no intention of moving out of the subject premises and when advised that he risked a custodial sentence he said that he did not care and would go to prison rather than move out.  On 15 August 2000 the second-named defendant again repeated to the Housing Officer that he was adamant that he would not move out of the premises.
            On 28 September 2000 the court made an order that the second-named defendant should be committed to prison for a period of 14 days in respect of his contempt of court but it ordered that the execution of the order should be stayed for a period of two weeks.  That order was personally served on the second-named defendant on 4 October 2000.  He has remained in possession of the premises since then with the first-named defendant and her children.  
            The second-named defendant who is a 25 year old unemployed man resides in the premises with the first-named defendant as his partner.  She appears to have a number of children by a previous relationship.  Two of the children suffer from asthma and one child has a hole in the heart.  The defendants on 1 May 1999 took a tenancy of premises in the private sector at 1 Steelestown Gardens, Londonderry from a Mr Peter Doherty.  The defendants paid £1000 to the landlord to secure the premises.  The landlord allegedly later demanded a further £800 to allow them to remain in the premises.  The second-named defendant says that he could not afford the sum and he alleges that the landlord called at the premises looking for money and when told that the defendants could not afford to pay any more he is alleged to have pushed the first-named defendant who was then pregnant to the ground.  The defendants made a complaint to the police but heard no more about it.  The second-named defendant says that because of the landlord’s attitude the defendants were forced to seek alternative accommodation.  In August 1999 the second-named defendant says that he discovered vacant premises at 94 Westway, Londonderry and he and his family moved into the premises.  The Executive’s evidence is that the premises had been fully secured with steel shuttering and that the defendants gained access through the roof.
            The second-named defendant claims to have spent considerable sums of money on the premises installing a new fireplace, putting in floors, a toilet and generally rendering the premises habitable.  The second-named defendant in his affidavit concludes by saying:-
“I wish to add that prior to the instigation of these proceedings the plaintiff gave me a choice to move out of the premises and into a hostel for 6 weeks after which time I would be rendered homeless if I had not found alternative accommodation.  I could not take this risk then nor can I take it now as my family would be left to fend for themselves.”
From the oral evidence given by Mr McPherson the Senior Executive Official with direct knowledge of the housing situation in Londonderry it is apparent that there is a significant housing waiting list in the Creggan area in Londonderry with demand for housing exceeding supply.  Homeless persons including those with children have to wait up to 18 months before rehousing can be provided.  The Executive had investigated the defendants’ claim to be unintentionally homeless but had concluded that the defendants were intentionally homeless and the defendants were so informed.  The allegation that Mrs Farren had been assaulted by the landlord had never been confirmed.  The defendants did not appeal against the Executive’s conclusion that they were not unintentionally homeless though Mr McPherson in his evidence stated that even now the defendants could pursue an appeal against the Executive’s finding.
            In the case of intentionally homeless persons the Executive provides accommodation in bed and breakfast establishments or hostels for a period of some 6 weeks after which the persons concerned must find accommodation of their own.  Mr McPherson stated that there is a good supply of accommodation in the private sector costing around £125 per week inclusive of rates.  Persons in the defendants’ position would probably be entitled to housing benefit of about £95 to £100 per week.  
THE ENFORCEMENT OF POSSESSION ORDERS MADE UNDER ORDER 113
            As this court pointed out in Northern Ireland Housing Executive v Magee [1995] NI 97 at 99:- 
“When the court orders that the plaintiff do recover possession of premises the order is enforceable pursuant to Article 53(1) of the Judgments Enforcement (Northern Ireland) Order 1981.  Where orders are made against named persons requiring them to deliver up possession of the premises committal for contempt is an alternative mode of enforcement available and in some instances it may be more expeditious and effective.  An order can only be enforced by committal if the orders directed to named individuals requiring the delivery of the premises within a specified period of time.”
  
            The use of the Order 113 procedure combined with the making of orders against named individuals enforceable by committal has been an effective mechanism for dealing with the social evil presented by unlawful squatting.  The unlawful entry by individuals into Executive property has over the years been a problem of some magnitude particularly in troubled areas where for historical and political reasons the enforcement of the law has been problematic.  Mr McPherson in his evidence pointed out that some ten years ago there was in the relevant area of Londonderry some 285 squatting cases a year.  This has now fallen to around 10 cases a year.  Mr McPherson states that the present procedures which are quick and effective have proved very effective at eradicating the social problem.  The threat of committal is in itself of sufficient potency to lead in the vast majority of cases to named defendants leaving premises on the service of the order.  On rare occasions the making of suspended committal orders has led to the defendants vacating the relevant premises without the need to make such orders operative.  The present case is the first occasion of which the Executive is aware that it has had to move beyond the point of a suspended order for committal to seeking an actual order of committal.
            The alternative form of enforcement is by application to the Enforcement of Judgments Office (“the Office”).  Following acceptance of an application for enforcement the Office issues a notice of intention to make an order for delivery of possession of land.  A copy of the notice is posted to the relevant defendant giving him 8 days within which to lodge objections to the making of an order for delivery of possession.  If an objection is received the matter is listed for hearing before the Master.  If there is no sustainable objections the order for delivery will issue.  This is then served on the defendant who is advised that he has 7 days to vacate the premises and remove all possessions.  If the defendant does not vacate the premises the case is booked for eviction.  In a letter to the court dated 30 November 2000 the Office stated that there are currently 240 possession cases being processed in the office and the minimum time between the date of acceptance and actual eviction will be 4 months.  The Office further pointed out that the premises in the present matter are located in a politically sensitive area in Londonderry and that some degree of civil disturbance could be anticipated in the enforcement of the order.  Police protection for the Office personnel would be necessary.
            The evidence makes clear that the defendants remain in occupation of the premises, that they are fully aware that they are in breach of the terms of the court order, that they do not intend to comply with the order and intend to remain in occupation of the premises notwithstanding that they know they are in contempt of court and liable to imprisonment.
THE PARTIES’ SUBMISSIONS
            Mr Lunny on behalf of the second-named defendant in resisting the Executive’s application argues that there is a reasonable alternative method of ensuring compliance with the court order which does not involve sending the contemnor to prison and that alternative should be pursued.  He relied heavily on Danchevsky v Danchevsky [1975] Fam 17 and Lord Denning’s statement therein that “whenever there is a reasonable alternative available instead of committal to prison that alternative must be taken.”  Counsel further argued that proper effect has to be given to the second-named defendant’s family life under article 8 of the European Convention on Human Rights.  An order for committal amounts to an interference with the exercise of his family rights.  While the procedure for committal would be in accordance with law the court as a public authority under section 6 of the Human Rights Act 1998 has to consider the purpose of and necessity for the interference with the family life of the second-named defendant under article 8(2).  He argued that a committal order is not a proportionate response and a less drastic means is available for enforcing compliance with the court order.  He further argues that the primary purpose of a committal order is to enforce compliance with the court order.  In this case if the second named defendant is committed the Executive is unlikely to recover possession of the premises.  
            Miss Gibson for the Executive pointed out that the approach in Danchevsky v Danchevsky was not consistent with the later approach adopted by the Court of Appeal in Kavanagh v Kavanagh (Court of Appeal transcript No 166 of 1978).  In the present case the proposed committal is relatively short.  The procedure in Northern Ireland of enforcement through the Office is not a reasonable alternative since there would substantial delay in enforcement, a risk of public disorder and the creation of significant risk for Executive officials.  Article 5 of the Convention recognises that a person may be deprived of his liberty for non-compliance with the lawful order of a court or an order to secure the fulfilment of any obligation imposed by law.  Separation from one’s family as the result of lawful detention could not be considered as an interference with the right to respect for family life.  If the court considers that the separation from one’s family as the result of the lawful detention could be considered as an interference with the right to respect for family life then such interference would be in accordance with the law being for a legitimate purpose (the economic well-being of the country, the prevention of disorder and the protection of the rights of others).  Execution of the suspended committal order would be a proportionate response.  The alternative response would be neither reasonable nor acceptable in light of the pressing social need and the rights of others waiting for the allocation of housing.
DETERMINATION OF THE APPLICATION
            Breach of an order such as the primary order in this case is categorised as a civil contempt.  As pointed out in Arlidge, Eady & Smith in Contempt (2nd ed.) at paragraph 12.5 it is obvious that any civilised society depends on the authority and effectiveness of court orders.  There is thus a public interest in seeing that orders are enforced.  Civil contempt cannot be considered therefore as merely a means by which individual litigants can enforce orders in their favour.  The court in the interests of the community at large has an interest in and duty to ensure that orders are not disobeyed.  Civil contempt bears a two fold  character implying as between the parties to the proceedings a right to exercise and a liability to submit to a form of civil execution but as between the party in default and the state the penal and disciplinary jurisdiction is to be exercised by the court in the public interest (see Phonographic Performance Limited v Amusement Caterers (Peckham) Limited [1964] Ch 195 at 198 to 191 and Jennison v Baker [1972] 2 QB 52 at 69 to 70).
            In Re Clements [1877] 46 LJ Ch 385 Sir George Jessel pointed out that:- 
“This jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges, to see whether there is no other mode which is not open to objection of arbitrariness and which can be brought to bear upon the subject.”
            In Danchevsky v Danchevsky Lord Denning commented:-
“Whenever there is a reasonable alternative available instead of committal to prison that alternative must be taken.  In this case there was a reasonable alternative available.  It was this:  to enforce the order for possession by a warrant for possession, to sell the house, and to make the conveyance of the property by means of an instrument to be signed and executed by a third person on the direction of the court.”
            The Convention in article 5 recognises the state interest in ensuring that courts can maintain their authority by the enforcement of their orders by committal.  While bearing in mind Sir George Jessel’s warning in Re Clements it is necessary in the present case to bear in mind a number of matters.  The second named defendant has been given ample notice of his obligation to vacate the premises but is contumaciously continuing to occupy the premises and has expressly indicated that he intends to flout the court order.  The court has not proceeded to commit him immediately but suspended the committal order to give him yet further opportunity to comply with his obligations.  Following the conclusions of submissions in this case the court has again not rushed to judgment in the hope that he will comply with the court order.  It must also be borne in mind that now the court must specify a limited period for committal which minimises the arbitrary nature of committal.
            The alternative form of enforcement through the Office is slow and likely to be accompanied by practical difficulties.  Meanwhile the Executive is deprived of possession of its property to which it is clearly entitled and the fact that it is deprived of possession of the premises means that it cannot make those premises available to those who are lawfully awaiting allocation of premises in the housing list.  Article 1 of Protocol 1 of the Convention secures to every person peaceful possession of his or its possessions and the state’s machinery to protect property rights must take account of that Convention right.  In the circumstances I do not consider that the remedy of enforcement through the Office is in the circumstances a reasonable alternative.
            This defendant has no defence to the court’s order and can simply avoid committal by doing what he is legally bound to do, that is to say vacate the premises.
            Article 8 of the Convention requires the court to afford respect to defendant’s private family life and home.  In this context while the second-named defendant resides in these premises so that they constitute his de facto home he has no legal entitlement to the premises.  In S v UK (1986) 47 DR 274 the Commission proceeded on the basis that premises could not constitute a person’s home for the purposes of article 8 once the legal entitlement to them had ceased.  In any event if the premises did constitute the defendant’s home the making of an order and enforcement thereof would be in accordance with law and necessary for the protection of the Executive’s property rights in the premises.
            As pointed out in Lester & Pannick in Human Rights Law and Practice the notion of respect in article 8 does not imply that any state action impacting on the interest will constitute an interference.  Where a person is lawfully detained the direct inevitable consequences of detention will be the separation of the detainee from members of his family but that does not in itself mean that he has been deprived of his right of respect for his family.  Thus in McVeigh v UK 5 EHRR 71 where Mr McVeigh and Mr O’Neill were detained under the Prevention of Terrorism legislation the argument was raised that the right to family life was breached since they were prevented from joining their wives during the detention.  The Commission rejected this argument saying:-
“Their separation from their wives was the direct and inevitable result of the fact that they were detained.  The Commission has already held that the detention was as such compatible with the Convention and in these circumstances it does not consider that the applicants’ separation from their wives can be considered as an interference with their right to respect for family life under Article 8(1).”
 
See also McCotter v UK [1993] 15 EHRR CD98.
 
            If Mr Lunny’s argument were taken to its logical conclusion the result would be that a court determining whether to commit a defendant for contempt would be bound to afford a person with a family more favourable treatment than a person without a family.  Such differential treatment might itself fall foul of article 14.  
            Even if article 8 did come into play I am satisfied that implementing the suspended committal order in the present circumstances would not infringe article 8.  The interference with the family life would be in accordance with law and would be for a legitimate purpose being for the protection of the property rights of the Executive and necessary in a democratic society in which the sanctity of court orders must be upheld and respected.  Nor do I consider that the making of the order would infringe the principle of proportionality having regard to the time and opportunity given to the second defendant to comply with the order and having regard to the limited period of detention to be directed.
            In the result the second-named defendant having continued to flout the order of the court I shall make an immediate order for his committal to prison for 14 days.

Possession order under Order 113 – contempt of court – whether defendant should be committed – relevant principles – articles 5 and 8 of the ECHR – whether committal order would infringe article 8 – right to respect to family life – proportionality of an order for committal. 
 
GIRL3086
2000 No 1001
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
CHANCERY DIVISION
------- 
IN THE MATTER OF LAND AND PREMISES SITUATE AT AND KNOWN AS
94 WESTWAY, LONDONDERRY BT48 9NT
BETWEEN:
NORTHERN IRELAND HOUSING EXECUTIVE
Plaintiff;
and
 
JUNE FARREN (ALSO KNOWN AS JUNE DEERY)
First-named Defendant;
and
 
MARK KEHOE
Second-named Defendant;
and 
 
PERSONS UNKNOWN
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J U D G M E N T   
 
O F 
 
GIRVAN J
 
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