England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Monday, 24th June 2002

1. MR. JUSTICE WALL: This is an appeal by Mr Lares against an order made by His Honour Judge Cox sitting in the Lambeth Court on 25th March 2000. The order stated that Mr. Lares was in breach of a non-molestation order made by the District Judge on 15th January 2002, and that, consequent upon the breach, Mr. Lares should be committed to prison for a total of three months. However, the order was suspended until 25th September 2002, and was not to be enforced unless there was a further breach of the order made on 15th January 2002, and provided that Mr. Lares did not enter or attempt to enter premises at 18, Effra Mansions, London, SW2. The injunction was also to continue in force until 25th September.
2. In the court below both parties appeared in person. The complainant, Ms Parsons, is the estranged wife of Mr. Lares. Mr. Lares himself appeared with the benefit of a McKenzie Friend, whom we have heard today in this court.
3. The sequence of events was that the District Judge granted the non-molestation order on 15th January. The judge found that the order was handed to Mr. Lares by Ms Parsons on 16th or 17th January. The order contained a power of arrest.
4. The events complained of took place on 6th and 7th March. Consequent upon the alleged breach Mr. Lares was arrested and brought before the court. By the time the matter came before the judge on 25th March Ms Parsons had made a long statement setting out her version of events, and Mr. Lares' McKenzie friend had had the time and industry to prepare a detailed skeleton argument which was put before the judge.
5. At the outset of his judgment the judge gave himself an extremely important direction which I propose to read out. He said this:

"In considering the question whether or not the power of arrest was properly invoked and whether or not Mr Lares was in breach of that injunction order I have to bear at the forefront of my mind before considering any issues of fact in this case that these are quasi criminal proceedings and that the burden lies upon Miss Parsons to prove her case and not adopting the civil standard of proof but according to the criminal standard of proof, namely I must be satisfied so that I am sure of it before I make any finding adverse to Mr Lares. Those are matters which I keep at the forefront of my mind throughout my consideration of the evidence in this case."

6. As the case turns almost entirely on the facts and on the judge's assessment of the credibility of Ms Parsons and Mr Lares, that direction is of considerable importance. It puts Mr. Lares in some difficulty because the judge, having heard the parties, plainly preferred the evidence of Ms Parsons and did not accept Mr. Lares' account.
7. The notice of appeal raises a number of heads. Firstly, it complains that the non-molestation order was not properly served or brought to the attention of Mr. Lares; secondly, that he was unable to construct an adequate defence, given that he did not have a copy of the non-molestation order; thirdly, that contrary to the rule of natural justice and article 6 of the European Convention on Human Rights, the hearing was not fair because the judge demonstrated apparent bias against the respondent relating to the fact that he accused Mr. Lares of being the owner of a mobile telephone which went off in court. I will return to that in a moment.
8. The grounds put forward on Mr Lares' behalf have been supplemented in a skeleton argument prepared by Mr. Hanuman and which I will go through in due course. As to the allegation of bias, what is said by Mr. Hanuman is as follows. He attended court with Mr. Lares. Prior to Mr Lares' hearing coming up a mobile phone rang. There were clearly a number of people in court. It is said that His Honour Judge Cox immediately spoke sternly to Mr. Lares whom he addressed by name, inferring that he remembered him from the previous hearing when he had been brought in under the power of arrest. His Honour Judge Cox allegedly told Mr Lares to switch off his mobile phone and lodge it with the security staff at the court entrance. Mr Lares protested. He said that his phone was switched off and that it was not his phone which had rung. This response allegedly infuriated the judge who directed the usher to remove Mr Lares' mobile phone. The usher approached Mr. Lares. Mr Lares did not hand it over. Judge Cox said that unless the phone was removed from the court he would not go on hearing the matter. Some minutes later a barrister sitting at the rear of the court indicated that someone he had helped was the owner of the alleged telephone. That owner then, according to Mr. Hanuman, reluctantly owned up and left court with the telephone. Finally, it is said that His Honour Judge Cox did not apologise to Mr. Lares. It then appears that the judge interposed a number of other matters before reaching Mr. Lares' case.
9. Speaking for myself, this allegation, even if accurately described, comes nowhere near establishing bias on the part of the judge. No doubt, the judge may well have been irritated by a mobile phone going off in court. Mr. Lares could, however, have reacted differently. While protesting that it was not his, he could nonetheless have agreed to hand his phone over. Alternatively, even if he did not do that, I see nothing in the incident which comes near to demonstrating that as a consequence of it the judge demonstrated bias. In my judgment, that part of the appeal does not begin even to get to first base.
10. The second point taken is that Mr. Lares was not effectively served with the non-molestation injunction; alternatively, that it was not properly brought to his attention. When the matter came before the judge that formed part of the detailed skeleton argument put before the judge. The difficulty which Mr Lares faces here is that there is a clear finding of fact by the judge as to what happened. Of the two versions, namely Ms Parsons' evidence that she endeavoured to give documents to Mr. Lares, and indeed did so, was believed by the judge as distinct from Mr. Lares' assertion that nothing of the sort occurred. Ms Parsons, when she met Mr Lares, described what happened. The judge found:

"I am satisfied that she did tell Mr Lares that she had obtained a non-molestation order against him and that it forbade him to use or threaten violence to her and I am satisfied that on being told that Mr Lares refused to accept service of the document. That being the case, I have power under the county court rules to dispense with service and it seems to me that this is a case where if service did not in practice actually take place it is without doubt a situation in which service must be deemed to have taken place and I so deem it."

11. In my judgment, on the evidence before him that was a finding which the judge was clearly entitled to make. Ms Parsons in her statement to the court goes into some detail of the circumstances in which she met Mr. Lares on that evening as to handing him the non-molestation order and telling him what it was. The judge, having heard and seen both parties, was entirely justified to accept Ms Parsons' version.
12. When it comes to the actual alleged contempt itself, there is a startling difference of evidence between the two versions. I do not think it necessary for the purpose of this judgment to go into it in detail. Suffice it to say, Ms Parsons' case was that, having concealed himself in her flat, Mr. Lares, with a knife in his hand, came into the room where she was speaking on the telephone. There was an altercation, as a result of which he forced her to the floor and, having achieved his object of intimidation, he got up to leave. The judge said that he was sure that Mr. Lares deliberately breached the injunction order which he knew existed. That is a clear finding of fact. It is for the judge to find the facts. If he finds them on available and appropriate material there is nothing that this court can do to interfere.
13. A point is made that the judge may have confused in his mind the manner in which Mr Lares entered the flat on 6th or 7th March as opposed to the date on which he was served with the order. In my judgment, that detracts nothing from the clear and firm finding which the judge made on the primary issue in the case. In these circumstances, it seems to me that the points taken in the skeleton argument by Mr. Hanuman serve him very little. The judge was plainly entitled to dispense with service in the circumstances that he described. It is clear that, by the time that Mr. Lares got to court in March, he knew full well what the allegations against him were. He had had the benefit of a full statement from Ms Parsons setting out her case in some detail. He knew what the allegation against him was. He knew what order he was alleged to have breached. I see nothing that indicates that the hearing was in any way unfair. The judge was entitled to find that Mr. Lares had breached the non-molestation order. He was entitled to impose the penalty on him which he did. He took the view that the order should be suspended. We were delighted to hear from Mr. Lares that he has obeyed the ongoing order and that he has no intention of going back to his former wife's accommodation. We hope that he will stick with that resolve and obey the order of the court. In my judgment, there is nothing in this appeal which begins to show that the judge was wrong. I would dismiss it.
14. LORD JUSTICE THORPE: I agree. The appeal will be dismissed.
Order: Appeal dismissed; application for permission to appeal to the House of Lords refused.