England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(His Honour Judge Orrell)

		Royal Courts of Justice Strand London WC2 Monday 2 July 2001

Monday 2 July 2001

1. THE PRESIDENT: This is an appeal against the committal order made by His Honour Judge Orrell on 28 March 2001. There are four grounds of commital. Three are in connection with events prior to the hearing before the judge and the fourth, with which we need not be concerned, was a contempt in the face of the court whereby the Sikh defendant turned to his estranged wife and in Punjabi made offensive remarks that earned him an additional sentence of 28 days, since there was a Punjabi interpreter in the court who interpreted to the judge what the husband was saying to the wife. That 28 days was made by the judge consecutive to the sentence of 12 months for the three previous contempts. On an application to purge his contempt on 16 May 2001, the judge refused the application to purge but reduced the sentence for the contempt in the face of the court to run concurrent with the twelve months instead of consecutive to it.
2. There is a long history to this unfortunate marriage. That history is provided to this court with an unusual paucity of information, and therefore I am unable to say when the parties married, how many children they have or when they separated. It seems pretty clear that they must have separated by May 1996 because the appellant was then, for the first time, imprisoned for contempt with a sentence of four months. That was for harassment by him of his estranged wife.
3. There have been numerous injunctions. Again we have no information about almost all of them. However, it appears that in June 1999 the appellant was again sentenced, this time for 18 months. On 3 November 1998 there were non-molestation and exclusion orders, and on 26 February 1999 those orders were extended for two years until 16 February 2001. There were nonetheless further breaches. At one stage the appellant was remanded for a medical report. On 24 July 2000 he was committed to prison again, this time for six months.
4. The appellant has an alcohol problem. He has been diagnosed as an alcoholic and his problems of drink have been quite severe. At some stage after he came out of prison after the sentence of 24 July 2000, he took the astonishingly foolish step of changing his accommodation to live either in the same street as his wife or just round the corner, almost adjoining the house where she and their children live. That was quite unbelievably foolish of him because it was irresistible for him to visit the wife at the house, which he did on an almost daily basis. He admitted to doing that, so there is no doubt that he was seriously in breach of injunctions that he should not molest the wife or go anywhere near her and the house. He had all sorts of reasons why he had to go and see her, reasons to do with the children. Whatever the reasons, he was in breach of these orders.
5. Not very surprisingly, there was an application to commit using form N78. On that application it indicated the order that he was in breach of: that he was forbidden to intimidate, harass or pester the applicant; that he must not instruct, encourage or in any way suggest that any other person could do so; and that he was not to enter the premises at 84 Holcombe Street, Derby or attempt to enter the premises, including the garden, after a day fixed by the court. In summary, the defendant should not at any time for any purpose be in Holcombe Street, Derby. The application to commit was based on him (1) continuing to go to the house on a daily basis and attempting to gain entrance 84 Holcombe Street, Derby, and (2) verbally abusing the wife on a daily basis by swearing at her and calling her derogatory names from December 2000 until the last incident on 10 February 2001.
6. As I have already said, living where he was, adjourning the house, he was in Holcombe Street, Derby every day: he was attending the house, he was in the garden and he was attempting to go in. During that period it does appear that he was not drinking, or not drinking excessively, but unfortunately on 9 (or possibly 10th, but probably 9th) February, because he had other proceedings unconnected with his domestic proceedings he was no doubt under some stress and, as a result of the stress, he went on a binge. He attended the house at 1.30 am, as the judge put it, "in drink" and was banging on the doors and shouting, and then he went back on the same day at twelve noon, banging on the doors and, as the judge put it graphically, "in greater drink".
7. The appellant indicated to the judge that he had not been drinking until that occasion. It was clear from the transcript of the proceedings that he had been attending the house on a daily basis. He admitted it, and he admitted it in his affidavit to purge his contempt. There is no doubt, in my mind at least, speaking for myself, that he was visiting 84 Holcombe Street, Derby on a daily basis between November 2000 and February 2001, ending on 9 February. That was found by the judge and it was entirely in accordance with the first paragraph of the form N78. The judge went on to find that the appellant had specifically broken both of the injunctions on 9 February on the two occasions when he was clearly the worse for drink and went and banged on the doors. They were specific instances of his breach of injunctions.
8. The judge pointed out in his judgment that the appellant was a chronic alcoholic; that there was a dreadful history of breaches of court orders; that on 24 July 2000 Judge Waite had indicated the problem which remained while the appellant lived within a one-mile radius of the wife and, notwithstanding that, he had specifically obtained accommodation adjoining that of the wife. The judge decided that he preferred the evidence of the wife to that of the husband, and he found the breaches proved in that between November 2000 and 9 February 2001 the husband visited 84 Holcombe street on an almost daily basis and, the judge found, on most occasions was in drink. Those are findings of the judge in his judgment. He then found that on Friday 9 February at 1.30 am, and then at twelve noon, he visited the property, on both occasions heavily in drink, and banged on the doors. The judge accepted that the wife's mental health and well-being had been adversely affected by this long course of conduct. He said:

"I do not believe that Mr Olk intends to ruin his wife's life, but alcohol has ruined his life and he is now incapable of controlling himself until he resolves the problem.

The main objective of the Court today is to protect Mrs Olk -- although one might be very sorry for Mr Olk. Given the history and the flagrant repetitions of breaches of court orders leading to great distress and anxiety on the part of [the wife], I am constrained to admit Mr Olk to prison for a period of twelve months."

9. And that was the order that he made.
10. On 16 May, at the application to purge his contempt, the appellant swore an affidavit and set out the mitigation. That mitigation dealt entirely with two matters. One was that he had not really appreciated what these proceedings were about when he was seen in the cells, because he was so occupied with other proceedings. He says at paragraph 2:

"I did attend Court on the 18th June 1999 although I had not been served with notice of the application."

11. Then he goes on to explain what occurred in February or March 2001. He does not set out in his application to purge contempt any of the matters which are currently before this court today.
12. Four matters are raised by Mr Felstead, who has made a brave attempt to persuade this court that this committal order should not stand. Three of the grounds relate to facts. The facts, very briefly, are that the appellant was engaged in other proceedings; he did refuse to accept the service of the documents sent by the wife; he did not appreciate when he went to court on the morning that he was doing anything other than a further injunction. Indeed, he went so far as to suggest that he had been told by the solicitors' representative who saw him in the cells on the day that he was merely going for the injunction: there was no question of him going to prison.
13. These are important facts and indeed, if true, would be of course of great significance to the judge. But not only is not a single word of that contained within the application to purge contempt and the affidavit, but of particular interest is that the judge at the hearing asked him about service and said, "Is that right, you refused to accept service?" to which he said, "Your Honour, I've -- I've got a trial next week and I wanted more time with this, because -- I had too much on my head, regarding the trial next week." Then he went on to explain that he was dealing with a criminal trial. Then the judge said:

"Have you been served today with the papers? MR OLK: I have -- yes, sir.

JUDGE ORRELL: Yes. And you've read them?

MR OLK: Yes, I've read them."

14. Then he goes through what these various matters are. The appellant accepts to the judge that he went to the house in breach of the orders, and on a more or less daily basis. He said, "I've been to see my kids, yes." He said he had not been inside:

"JUDGE ORRELL: But you've been going round there, on an most daily basis?

MR OLK: Not a daily basis, no. (Inaudible).

JUDGE ORRELL: Several times a week?

MR OLK: I have, yes."

15. Then he said:

"I've stopped drinking. And the once I drank was in February because -- of this trial. I've had too much in my head, and I'm a bit worried about it, but I wasn't drunk."

16. He talked about these other proceedings and Judge Orrell then goes on to say to him:

"Now, do you want an adjournment today? -- (Short pause) -- First of all, do you want a solicitor?

MR OLK: I think we might as well get this over and done with, because ----

JUDGE ORRELL: Very well.

MR OLK: ----- it wastes her time as well ----she's working ----"

17. That was a pretty good indication that Mr Olk understood entirely what the proceedings were about - one has to bear in mind it is not the first time he had been before the judge on breaches of these injunctions; it was by then, I think, the fifth occasion -and that he had been sentenced previously to imprisonment as well as two suspended sentences of imprisonment. He was a very experienced litigant in person at that stage. He accepted he did not want an adjournment. He accepted he did not want a solicitor. He did not raise before the judge that he had been misled as to what the proceedings were about. Nothing of that was said at all. Nothing, as I said, was said in the affidavit to purge his contempt. Apparently Mr Felstead tried to raise this with the judge on the application to purge his contempt, who, quite rightly, looking at the affidavit, dealt with the purging of contempt and refused to deal with nothing else which had not been set out in advance. Mr Felstead - who was in the embarrassing position of having been instructed the night before, having seen his client in the cells, having got from his client this entire story for the first time - made a valiant effort to tell it to the judge who, in my judgment, was entirely justified in refusing to hear it, presented as it was in this sort of second-hand way and at a late stage. If these were allegations of any substance which had any validity to them, then they would have been burning in the heart and in the voice of this experienced appellant, and he would have told the judge at the contempt hearing and he would either have asked for an adjournment or it would all have come spilling out to the judge that he had been misled.
18. At this stage on appeal, although we have a sworn statement provided to this court on Friday, in which is this entire story, it is too late to bring this story before the court, and for my part I see no reason to rely upon that in any way as part of the ground of appeal to say that this order should be set aside because, on the face of it, the appellant was clearly in breach of all these matters which were perhaps set out in the N78.
19. There is, however, another point which is raised by Mr Felstead which requires a little thought. The N78 sets out two general points. They are: continually attending and attempting to gain entry and, secondly, the verbal abuse. Each of them includes "up to 10 February". What the judge did, because the evidence came that way, was to hear evidence that the appellant had been attending at the house on an almost daily basis and that he had been drinking, and that he had specifically visited on two occasions, probably on 9 February, at 1.00 am and at twelve noon. The judge made specific findings to that effect and committed him. The committal order at page 25 of our bundle sets out the November 200-February 2001 daily visits, and the two specific incidents on 9 February 2001. The judge was entirely justified, on the evidence before him, to make his first finding and to commit the appellant for that, and his order says "Committed to prison for 12 months on Count 1."
20. In my judgment it is more difficult for the appellant to be committed on counts 2 and 3, which were the specific incidents on 9 February. They were not specifically set out in the N78. They were not individually relied upon by the respondent to this appeal. In my judgment, the proper way to look at this is to say that both those incidents come undoubtedly within the general allegation, which has been quite clearly proved, of attending the property on a daily basis and attempting to gain entry, and on 9 February those two incidents aggravate the daily attendance, by one of them being at 1.30 am and by the fact that he was clearly drunk and he was shouting and banging at the door. I agree with Mr Felstead that the judge was not entitled to make separate findings under paragraphs 2 and 3 of the committal, and separately to commit Mr Olk on those two incidents, because they did not form part of separate allegations in the notice to commit. As I have said, they are very strong instances of the paragraph 1 of the committal, which was clearly proved.
21. Mr Felstead has sought to say, without producing any case to support it for us to look at, that if there is on the face of a committal a manifest error, the entire committal proceedings fail and his client should therefore be released from prison.
22. The procedure in relation to committals and the way in which the court should approach these applications have been very usefully assisted by the decision of this court in Nicholls v Nicholls [1997] 1 WLR 314, in which Lord Woolf, then Master of the Rolls, gave the judgment of the Court of Appeal and in which he stated that it would not be necessary to revisit the authorities prior to 1992. In that decision of this court the Master of the Rolls dealt with the effect of procedural defects on committal orders. I read from the guidance of the Master of the Rolls, conveniently set out in Rayden & Jackon at paragraph 33.23:

"The most recent guidance of the Court of Appeal is as follows.

(1) As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. . .

(2) As long as the contemnor has had a fair trial and the order has been made on valid grounds the existence of a defect in the committal application or in the order served will not result in its being set aside except in so far as the interests of justice require that to be done.

(3) The interests of justice will not require the order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.

(4) When considering whether to set aside the order, the court should have regard to the interests of any other party . . .

(5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there were circumstances indicating that it would not be just to do so."

23. Applying that wise guidance to this case, I have no doubt for my part that the contemnor has had a fair trial, that the order was made on overwhelming evidence and that the first paragraph of the N78 was amply made out. The defects in the order of the judge can easily be regarded as instances of the first matter on which he was committed for contempt. It would therefore not be right that the contemnor should be committed for contempt on paragraphs 2 or 3 and in my judgment those two orders should be set aside.
24. But that still leaves the first order, which was that the appellant had been in contempt between November 2000 to 10 February 2001. There has been no prejudice caused him by the result of the way in which the judge approached it. I have some sympathy with the judge approaching it in that way because it would have been greatly preferable in this case if the N78 had set out those two instances as specific incidents under paragraphs 3 and 4 in addition to the two general incident paragraph 1 and 2. The judge made no finding on paragraph 2 and it plays no part in this appeal. There has been no procedural irregularity that has caused injustice.
25. Therefore for my part I would allow this appeal to the very limited extent of saying that the committal to prison should be on ground 1, and that ground 2 and ground 3 should be deleted. (Ground 4 does not arise because that was perfectly proper, arising from an incident after the committal when the appellant was committing an offence in the face of the court.)
26. The only matter, therefore, that remains is whether twelve months is a proper sentence by way of penalty in respect of this contemnor. He had a long history of numerous breaches of injunctions, and he has served already 18 months, 4 months, 6 months and another period that I cannot remember at the moment. He chose to go and live more or less next door to his former wife. He chose, because he was living almost next door, to go towards the house, into the street, into the garden and bang on the door. The only thing he did not do was to go inside, but in every other respect he was daily in breach of the order. He is well-aware of the penalties incurred by those who deliberately breach orders. His excuses before the judge on 16 May were treated, quite rightly, by the judge as not being excuses to mitigate his contempt.
27. Standing back and looking at this case, the fact that the appellant is an alcoholic, the fact that he is unable to control himself, does not mitigate when one bears in mind that he chose to go and live almost next door to the wife. In all the circumstances, the sentence of twelve months was entirely just and one which the judge in his discretion was eminently justified in awarding, and I would not wish to interfere with that otherwise. Consequently I would allow this appeal to the very limited extent of deleting paragraphs 2 and 3 from the order committing the appellant to prison.
28. LORD JUSTICE THORPE: I agree.
ORDER: Application for extension of time allowed. Appeal allowed to the extent of deleting paragraphs 2 and 3 from the order below. Detailed assessment of the appellant's costs. (Order not part of approved judgment)