England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD COUNTY COURT SITTING AT BIRMINGHAM
Her Honour Judge Alton

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th October 2002

Lord Justice Carnwath :

Introduction

1. This is the judgment of the whole Court. The stark fact is that an order for the removal of a fence, made as long ago as May 1998 and renewed on several occasions since, remains still unimplemented. That has led to the defendant, Miss Richards, spending several weeks in prison this summer, as a result of the judgment now under appeal; and to an application to commit her mother, Mrs Richards, who has encouraged in her defiance of the court orders, for criminal contempt. Yet the fence is still in place.
2. We address below the arguments presented by Mrs Richards, who with our consent spoke on her daughter’s behalf. However, nothing which follows in this judgment should be seen as detracting from the simple message that the Court’s order must be obeyed, and the fence must be removed. The sooner the Richards appreciate that fact, the less misery and expense they will cause to themselves and all others involved in this unhappy saga.

Background

3. The story begins in December 1995, when Miss Richards erected a pig wire fence along what she claimed to be the boundary of her land adjoining that of the claimant, Mr Benson. Mr Benson began these proceedings to establish the true boundary, and for an injunction for the fence to be removed. The case came before the Telford County Court (Recorder Oliver-Jones Q.C.) in May 1998. On the second day (7^th May) the Judge decided, as a preliminary construction point without hearing evidence, but having visited the site, that the boundary ran through the centre of a hedge which originally ran in a generally North/South direction between the two properties. He was informed on behalf of the parties, both of whom were legally represented, that their respective surveyors envisaged no problems in agreeing the relevant line. On the following day, the Judge was informed that the physical location of the boundary had been pegged out and agreed on site by the surveyors. They had also signed a plan on which they had marked the agreed line, but it seems that this may not have been shown to the Judge at that stage.
4. Accordingly, the Judge made an injunctive order requiring Miss Richards to remove the fence and posts by 4.00pm on Monday 18^th May 1998, and forbidding her from trespassing on the claimant’s land. There was also a separate declaratory order determining that the boundary “lies in the centre of the hedge”. The injunctive order closed with the following words, appropriate to an interlocutory order:

“This order shall remain in force until the date of judgment unless before then it is revoked by further order of the Court.”

This order was drawn up and sealed on 8^th May.

5. The Judge then heard argument on other issues on the claim and a counterclaim. These formed the subject of a reserved written judgment dated 12^th May, which had a “form of order” attached. It was not formally handed down in court, but appears to have reached the parties some days later. (Judge Alton in the judgment under appeal recorded Mrs Richards’ statement that she had been given a copy on 18^th May, but “had no time to read it at that point” – p 7). However, due apparently to an oversight, that form of order was not converted into a perfected order at that stage.
6. The judgment makes clear that the interlocutory form of the previous order was intended only to apply to the order restraining trespass, because the Judge wished to reserve the issue whether it should be made permanent. It was not intended to affect the other orders, which he incorporated into the form of Order “for the avoidance of doubt”. On the other reserved issues, he awarded the claimant damages for trespass of £653 plus interest, and dismissed Miss Richards’ counterclaims. In particular, he dismissed Miss Richards’ claim that alleged waterlogging of her land was attributable to the filling of a ditch by, or any other act of, the claimant. He held that there never had been a ditch as claimed by Miss Richards.
7. The subsequent history was reviewed by Neuberger J in January 2002 (see below), and is set out in considerable detail in the judgment under appeal. It is sufficient for us to refer only to the most significant events. On 5^th October 1998, Miss Richards’ application to appeal against the County Court judgment came before this Court. The Court allowed an application to adjourn, pending the House of Lords consideration of Wibberley Building Ltd –v- Insley (see now [1999] 1 WLR 894), the Court of Appeal decision in which had been relied on by the County Court in this case. The Court refused a stay of the injunction to remove the fence, but fixed a new time for compliance, in the following terms:

“The defendant do comply with the order of Mr Recorder Oliver-Jones QC dated 8^th May 1998 by pulling down and removing the fence and post by no later than 4.00pm on Monday 19^th October 1998.”

8. In the meantime, in June 1998 the claimant had begun committal proceedings to enforce the injunction. In December 1998 Miss Richards sought to invoke the liberty to apply provision contained in the Order of May 7^th 1998. Her application was heard by the original Judge and it seems to have been on that occasion that it was noted that the May “form of order” had not been perfected, and that it also contained an incorrect reference to “a plan AB1”. Another possible confusion raised at the hearing in December 1998 was as to the precise meaning of the reference in the May order to “the centre of the hedge”, which had been interpreted by the experts as equivalent to “centre of the root-line”. However, that issue had no bearing on the order to pull down the fence, which on any view was on the claimant’s side of the boundary.
9. Miss Richards’ application for permission to appeal was eventually heard in this court on 29^th July 1999, following the House of Lords decision in Wibberley –v- Insley. In a fully reasoned judgment the court (Roch LJ and Wilson J) refused permission to appeal. The only points argued related to the Judge’s conclusion as to the line of the boundary. There is no indication in the judgment that Miss Richards, who was legally represented, was taking any point about the form of the injunction, or the definition of the boundary as agreed by the surveyors. Indeed, the Court noted that its bundle included a copy of a plan which the surveyors had agreed and signed “in accordance with what had been decided” (Judgment p 7A). The Court also noted that there was not, “and could not reasonably have been”, any attempt to seek permission to appeal against dismissal of the counterclaim (p 7E); and that the issue whether there had been a ditch along the boundary had been “conclusively decided” against Miss Richards (p 15G).
10. The course of the committal proceedings thereafter is not something of which the legal system should be proud. However, it would serve no purpose in this judgment to go into it in any detail. It is sufficient to note that there were renewed attempts by the claimant to enforce the order, and by Miss Richards to reopen the issue of the boundary. The May 1998 “form of order” remained in draft form until July 2001. Following a restored committal hearing on 6^th July, again before the original Judge, an order was made (drawn on 9^th July) setting a new time (16^th July 2001) for compliance with the order of 8^th May 1998, and amending (by deleting the reference to the plan) the as-yet undrawn “form of order” attached to the judgment of 12^th May 1998. The “form of order” as so amended was finally drawn and sealed on 19^th July 2001, still giving the time for compliance as 18^th May 1998. Both these orders were served on 23^rd July 2001 (after the time fixed for compliance in each). Neither had a “penal notice” attached, as required by the rules (see below).
11. There were also attempts to enable the claimant to use self-help. Orders were made, effectively authorising him to enter Miss Richards’ land to enable him to remove the fence, that being in practice impossible without crossing the boundary. His attempts to do so led to confrontations on the boundary and the involvement of the Police. Apart from the removal of part of the top section of the fence in December 1999, these attempts have not been successful, and have not been renewed.

Proceedings in 2002

12. The present chapter begins in January 2002, when Neuberger J, sitting in the High Court in Birmingham, was faced with two applications for permission to appeal: one, by the claimant against the adjournment of an application to “show cause” in the committal proceedings (dated 27^th July 2001); and the other, by Miss Richards, relating to the definition of the boundary. By that time there was also a new application by the claimant (dated 12^th October 2001) for a declaration that the boundary was in accordance with the line shown on the plan agreed by the surveyors in 1998. Neuberger J dismissed Miss Richards’ application, and directed that the issues raised by the claimant’s applications of 27^th July and 12^th October 2001 should be remitted to the county court to be heard by a new Judge. In doing so, he warned Miss Richards and her mother in clear terms that, if found in contempt, “there is a real risk that at least one of them will find herself in prison.”
13. These were the matters which came before Her Honour Judge Alton at the Telford County on 10^th July of this year. At this hearing Miss Richards appeared in person, with the assistance of her mother. In a meticulous judgment the Judge reviewed the history of the proceedings, and analysed the legal effect of the various orders that had been made. We will need to come back to that in considering the arguments on the appeal. She concluded in summary:

1. That the judgment of 8th May 1998 declaring the position of the boundary was intended as a final order, and that the surveyors had done what they were authorised and directed to do by the parties by plotting the line on the ground and recording it in the agreed plan in accordance with the declaratory judgment (p17, 30). She rejected Mrs Richards’ attempts to re-open that issue.

2. It was plain that apart from one short section which was agreed and identified by the surveyors, “wherever or however one draws on the land the precise position of the centre of the hedge, the defendant’s fence is upon the wrong side of it i.e. upon the claimant’s side and the trial Judge so found” (p28).

3. The defendant, Miss Richards had acted in persistent and deliberate contempt of the order of 8th May 1998 by her persistent refusal to remove the fence (p37).

14. For reasons to which we will come, the Judge excluded reliance on any orders other than that of 8^th May 1998, because of technical defects which she regarded as fatal. She also made a finding that Mrs Richards had aided and abetted the breach of the order, by deliberately encouraging her daughter’s defiance of the order. She adjourned the matter to give both defendants an opportunity to consider their position and address her on the penalties for the contempts which she had found.
15. The matter came back before the Judge on 1^st August when both defendants were separately represented. The Judge accepted a submission for Mrs Richards that, the contempt in her case being criminal in nature, the County Court had no jurisdiction to deal with it. That finding is not subject to appeal to this court. She heard submissions on behalf of Miss Richards. She imposed a sentence of three months’ imprisonment for persistent breach of the order and declined to order a stay pending appeal.
16. An appeal was lodged by solicitors on her behalf on 15^th August. That was originally fixed to be heard on 29^th August, but it was then adjourned until 5^th September on Miss Richards’ application, due to a change of solicitors, although bail was refused. A further adjournment was sought on that date on the grounds that the appellant was unwell and there were further difficulties with solicitors. It was adjourned until 2^nd October, but Peter Gibson LJ made it clear in his judgment that no further adjournments would be permitted. He said:

“I would stress that the appeal must be heard on 2^nd October. It is not tolerable for an appellant who has filed notice of appeal to hire and sack solicitors in succession and to rely on new solicitors’ unpreparedness to put off the appeal hearing. Justice to the claimant requires that there be resolution of this appeal as soon as possible.”

He added that he expected the hearing on 2^nd October to go ahead “even if it be the case that the defendant is then acting in person.”

17. When the matter came before us on 2^nd October, Miss Richards was unrepresented. On the previous day, the court had been informed by her solicitors that the Legal Services Commission had notified them that they were issuing a “notice to show cause” which prevented them from incurring any further fees. There were conflicting accounts from the parties as to the circumstances which led to this.

Preliminary matters

18. As a result of the various adjournments, by the time the matter came before us Miss Richards had served her sentence and been released. To that extent some of the issues raised by the appeal might be thought academic. However, the fence remains in position, and so it will be important in any future proceedings that the legal position is free from doubt.
19. In that connection, the claimant has made a further application for committal of Miss Richards before this court. Miss McDonald, who appeared for Mr Benson, urged us to take the unusual course of dealing with the committal application ourselves. She referred to the exceptional history of this case, exhibiting defiance of court orders over more than four years, including breach of an order of the Court of Appeal itself. She also relied on the fact that there were no substantial issues of fact to be resolved, since the boundary had now been conclusively settled, and the existence of the fence was not in doubt.
20. We indicated at the outset of the hearing that we were not minded to deal with the new application ourselves but we would remit it to be heard by the High Court in Birmingham as soon as possible. While the Court of Appeal may have jurisdiction to deal with a contempt application as a first instance court, we think that should only be done in the most exceptional circumstances, particularly where the defendant is unrepresented. It is not clear to us that the Legal Services Commission, in effectively withdrawing legal aid at the last moment, appreciated that there would be a question of further committal. Miss McDonald accepted that, for the purposes of the European Convention on Human Rights, such an application should be treated as a criminal matter, in view of the potentially serious consequences involved. Furthermore whatever the claimant may feel about the nature of the factual issues, it may not be easy wholly to shut out evidence an defendant may wish to call, when her liberty is at stake. A further factor, which again Miss McDonald recognised, was that by remitting it to the High Court rather than the County Court, we may make it possible for the cases against mother and daughter to be dealt with together, although we say nothing about the procedural route by which this might be achieved. We were informed that the High Court in Birmingham would be able to hear the matter on 21^st October. Accordingly we will direct that it be remitted to that court to be heard on that day, any further directions being a matter for the Judge, who is available to hear it.
21. Notwithstanding that decision, Mrs Richards on behalf of her daughter applied for a further adjournment of the appeal against the County Court committal order. Her main grounds for doing so were that legal representation had been removed at a very late stage, and that she needed time either to reverse that position, or to prepare the case properly herself. Miss McDonald for the claimant strongly opposed that application. In particular, she suggested that Miss Richards’ problems with legal representation were to a large extent caused by her own conduct, and certainly should not be allowed to prejudice the claimant.
22. We refused the adjournment and said we would give our reasons later. They can be shortly stated. The background is the judgment of this court at the beginning of September which made clear that this appeal would be heard on 2^nd October notwithstanding any possible difficulties of representation. Any further delay would severely prejudice the claimant both in relation to the costs which may never be recovered, and the yet further delay in securing enforcement of the injunction. On the other side, the arguments on the appeal are fully set out in the grounds of appeal which were clearly drafted with competent legal advice. Furthermore, Mrs Richards has shown herself, throughout the long course of these proceedings, familiar with, and well able to understand, the legal issues involved and to articulate them forcefully in court.

Grounds of appeal

23. Against that background we turn to the issues raised by the appeal. The grounds are stated as follows:

“The Judge erred in law in committing the appellant for breach of the mandatory order of Recorder Oliver-Jones QC dated 8^th May 1998 that she ‘shall (whether by herself or by her instructing servants or agents) pull down the fence and posts erected in December 1995 by 4.00pm on Monday 18^th May 1998’ notwithstanding that the order was an interim order only and that it ceased to have effect before the expiry of the deadline originally fixed for removal.

The learned Judge did not have any or any proper or sufficient regard for the nature of the breach and the length and nature of the delay prior to the hearing of the appellant’s committal in deciding whether to commit the appellant and/or, having decided to commit her, in determining the appropriate length of her imprisonment.”

24. The following paragraphs set out the detailed arguments, the main point being that the relevant part of the order of 8^th May 1998 gave rise to a “once and for all” obligation to remove the fence by 18^th May 1998, and not to a continuing obligation after that date. The second part of the grounds, as we understand it, is related to the same point. It is suggested that the Judge should have treated the breach as “of a narrow mandatory obligation only” and one which had been committed over four years ago; and that the sentence of imprisonment was inappropriate for such an offence.
25. Before turning to those arguments in detail, it is important to emphasise what this appeal is not about. There is no challenge to that part of the Judge’s order which confirmed the position of the boundary by reference to the plan agreed by the surveyors in 1998. As we have said, that issue had been put beyond any realistic doubt by this court’s dismissal of Miss Richards’ application for permission to appeal in July 1999. That has not prevented her from seeking to re-open it in subsequent proceedings. However, any remaining doubts were settled by the declaration made by Judge Alton. It is no longer a live issue..

Rules governing service

26. It is now necessary to look in more detail at the Judge’s analysis of the legal effect of the various orders. She was faced with the unfortunate position that, notwithstanding the proliferation of orders, there was none which was without its difficulties. In order to understand the problems, it is necessary first to refer to the relevant rules relating to service. The relevant provisions of CCR 29 rule 1 are as follows:

“(2) Subject to paragraphs (6) and (7) a judgment or order shall not be enforced under paragraph (1) unless:

(a) a copy of the judgment or order has been served personally on the person required to do … the act in question …;

(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;

(3) Where a judgment or order enforceable by committal order under paragraph (1) has been given or made, the court 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…, issue a copy of the judgment or order endorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2).

…

(6) A judgment or order requiring a person to abstain from doing an act maybe enforced under paragraph (1) notwithstanding that service of the 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 thought 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. (7) Without prejudice to its powers under Part 6 of the CPR, the Court may dispense with service of a copy of a judgment or order under paragraph (2) or a claim form or application notice under paragraph (4) if the Court thinks it is just to do so.”

The Judge’s analysis

27. The Judge helpfully summarised the position as follows: (p19):

“…there were, as at the date of issue of the notice to show cause with which I am concerned (21 July 2001) a number of relevant orders upon which a contempt application could potentially be based.

Order 8 May 1998 (“the Defendant …shall …. pull down the fence and posts erected in December 1995 by 4.00pm on Monday, 18 May 1998”)

Order 5 October 1998 (“the Defendant do comply with the order of Mr Recorder Oliver-Jones QC dated 8 May 1998 by pulling down and removing the fence and posts by no later than 4.00pm on Monday, 19 October 1998”)

Order 6 July, drawn 9 July 2001 (“the Defendant do by 4.00pm on Monday 16 July 2001 comply with the order made on 8 May 1998 to remove the fence”)

Order 12 May 1998 as sealed on 19 July 2001 (“the Defendant … by no later than 4.00pm on Monday, 18 May 1998 pull down and remove the fence and posts erected by her in December 1995 on the Plaintiff’s land”).

28. Later she summarised the -

“… regrettable procedural errors and oversights by the Court and the claimant’s solicitors which have unnecessarily complicated this case. Thus:

a) The order of 8 May 1998 was duly endorsed with a penal notice in accordance with the requirements of CCR 29 rule 1 (3). It was not, however, served personally as required by sub-paragraph (2) but was, I believe sent by post by the court;

b) So far as the order of the Court of Appeal is concerned, in so far as it stands as a separate order rather than merely setting a further date by which the Defendant’s continuing obligation to remove the fence should be performed did not contain a penal notice nor was any request made by the Claimant’s solicitors for issue of a copy so endorsed pursuant to sub-paragraph (3); I do not know whether it was served and if so how but assume that it was at most sent out in the usual way by the Court of Appeal office.

c) The order of 6 July 2001, as drawn on 9 July 2001, and the order of 12 May 1998, as drawn on 19 July 2001, did not have a penal notice incorporated by a court officer as required by sub-paragraph (3). There is a dispute as to whether the penal notice… which was drawn up by the Claimant, was attached to the orders of 9 and 19 July as served upon the Defendant by way of personal service on 23 July 2001. Mr Benson gave evidence to the effect that it was, Mrs Richards to the effect that it was not so incorporated. I accept Mr Benson’s evidence and I find that it was so incorporated and accordingly that a penal notice was indeed attached to the orders as served albeit not in the manner envisaged by CCR 29, Rule 1 (3). This apart, neither of these orders were personally served until after time for compliance with the 6^th July order had passed.” (p 22)

29. Having identified these technical problems, she noted that under CCR 29 Rule 1 the Court had a discretion to dispense with service of the order or the application notice if it thought it just to do so; and that by implication this would also involve dispensing with the requirement for a penal notice (p 22). However, in deciding whether to exercise that discretion, the court would need to be satisfied that the purposes of the requirements had been achieved. As she put it, the court would have to be satisfied “beyond reasonable doubt” that the defendant knew the terms of the orders relied on, that she was well aware of the consequences of disobedience, and that she was aware of the grounds relied on as a breach with sufficient particularity to be able to answer the charge (p23).
30. In applying these principles, she drew a distinction between the order of 8^th May 1998, in relation to which “the only procedural omission was the absence of personal service”, and the other orders. As regards that order she was “wholly satisfied that the respondents were well aware of the terms of the order and of the consequence of disobedience to it by the Defendant from the very start” (p 23). She noted that Miss Richards had been legally represented and, according to Mrs Richards’ own evidence, had been informed by their solicitors of the consequences of the order. That was sufficient to satisfy her that it would be “just in all the circumstances” to dispense with personal service of the order. In reinforcement of that conclusion she noted (among other points) that the Court of Appeal in October 1998 had set out in some detail the reasons why Miss Richards should, despite the pending appeal, comply with the 8^th May order, and had fixed a further date for compliance; and that in a statement filed in the contempt proceedings Miss Richards had in terms apologised to the Court “for being in breach of an order made on 8^th May 1998 to pull down a fence erected by myself in December 1995”.
31. Having reached that conclusion on the order of 8^th May, the Judge appears to have considered it unnecessary to reach a decision on the other orders, in particular the order sealed on 19^th July 2001. However, she indicated what her position would have been (p 24ff). The lack of a proper penal notice endorsed by the Court would not have concerned her, given her finding that the claimant did serve a “home made” penal notice with the orders served on Miss Richards. Further, Miss Richards was still very much aware of the risks involved in non-compliance.
32. However, the Judge attached more importance to the fact that both orders (that of 6^th July 2001, drawn up on 9^th July 2001, and that of 12^th May 1998, drawn up on 19^th July 2001) were served after the respective times fixed for compliance (p25):

“What is of greater concern, however, is the fact that the 12^th May order, like the 6^th July order, were not personally served until after the times for compliance with mandatory part of the order, contrary to CCR 29, Rule 1 (2) (b). In this context it is of note that whilst orders restraining acts may be enforced by way of committal even prior to, or in the absence of service pursuant to sub-paragraph (6) provided that it is shown that the Defendant was present when the order was made, an equivalent provision was not made in respect of mandatory orders. Whilst there is power to dispense with service, which power is not restricted to prohibitive injunctions, the absence of inclusion of reference to mandatory orders within sub-paragraph (6) and the explicit requirement of sub-paragraph (2)(b) would suggest that the Court should not, retrospectively, waive the requirement for service within the time stipulated by sub-paragraph (2)(b) for the very obvious reason that the court must be satisfied beyond doubt that the Defendant was wholly clear as to the requirements being imposed upon her and the consequences of non-compliance.

She continued:-

“The order of 12^th May would create a continuing obligation (even if the specified date for removal was not complied with and had long since passed) thereafter to remove the fence. However, personal service was effected upon the defendant only days before the application before me to commit was issued on 27^th July 2001, and, as I say, after the date specified in the orders had passed. Accordingly the strict requirements of CCR 29 r1 have not been satisfied and these orders were not therefore enforceable by way of contempt proceedings…”.

She made it clear that this point was technical rather than meritorious:-

“It could not possibly be said that the Defendant was in any doubt as to what the Court had ordered; she preferred, however, to operate on a basis of what she considered was her entitlements despite court orders. I am satisfied that not only did the Defendant know fully of the mandatory obligation but that any earlier service would not have made any difference whatsoever to her understanding of her consequent actions.” (p26).”

Issues raised by the appeal and respondent’s notice

33. As has been seen, Miss Richards, by her notice of appeal, attacks the Judge’s interpretation of the order of 8^th May, as one which had continuing effect after the date fixed for compliance. It is noteworthy, however, that the notice does not challenge the exercise of the Judge’s discretion to dispense with the requirement for personal service. That is understandable given the clear and incontrovertible findings as to the state of the knowledge of Miss Richards and her mother. The Claimant, in turn, by a Respondent’s notice, while seeking to uphold the Judge’s conclusion in relation to the order of 8^th May 1998, contends that she should also have felt able to proceed on the other orders, and that the grounds of dispensing with any procedural defects were equally strong in relation to them.
34. Dealing first with the order of 8^th May 1998, as we understand the argument set out in the notice of appeal, there are two separate points. The first is that the order was expressed to be interlocutory until the date of judgment; accordingly it had no further effect after the reserved judgment of 12^th May 1998 and therefore ceased to have effect before the expiry of the deadline for compliance at 4.00pm on 18^th May (para 1.6.2). The second point is that it gave rise to a “once for all obligation” to remove the fence by 18^th May, and no continuing obligation thereafter.
35. The Judge dealt with these points in two ways: first, having analysed the reasoning in the judgment of 12^th May 1998, she concluded that the words of the order of 8^th May referring to its interlocutory effect were intended to qualify the second of the two orders restraining trespass, on the basis that he was expecting to hear a further argument on which it should be a perpetual order or a time limited order. The order requiring removal of the fence on the other was a “straightforward mandatory order” which was intended to be final in effect and was included in the latter order as “a convenient repetition”. We entirely agree with that analysis. Indeed, as we have noted, it is quite clear from the judgment of 12^th May. It is also consistent, as the Judge observed, with the subsequent conduct of the parties and the courts in continuing to treat the order of 8^th May as effective.
36. Secondly, in relation to the reference to the order of 8^th May having effect until “the date of the judgment”, the Judge held that there was no “judgment” in that sense until the reserved judgment of 12^th May had been converted into a formal order:-

“‘Judgment’ as it appears in the context of an interlocutory order must mean not the reasoning or exposition of the court of the grounds for reaching its decision or conclusion but the formal document in which the decision, determination or conclusion of the court is set out. The reserved judgment sent out to the parties would seem to fall into the former and not the latter category until such time as the ‘form of order’ proposed at the end was formally announced, drawn up and sealed. Bearing in mind that it purported to contain injunctive orders any receiving party would be entitled to assume that it would not be effective unless and until formally drawn. It follows that, until July 2001 at the earliest, there was no ‘judgment’ within the meaning of the injunctive order of 8^th May 1998 such as to supersede that order. Once, however, the form of order was dealt with in open court on 6th July and subsequently sealed pursuant to the court’s direction as ‘amended’ then and only then, did it effectively ‘take over’ from the injunctive order of 8^th May 1998 (p18).”

37. Although we have not heard detailed argument on the point, that analysis seems persuasive. However, it carries with it a further difficulty which the Judge does not seem to have addressed. The effect of her reasoning was that the order of 8^th May was eventually “taken over” by the 12^th May order at least when it was sealed on 19^th July 2001. On that view, it had ceased to have effect by the time of the application to commit on 27^th July. Furthermore, as she acknowledged, once it was sealed, it would technically have been treated as dating back to the date on which it was “given or made” (see CPR 40.7; formerly RSC Ord 42 r 3(2)). This, it would seem, was not later than 18^th May 1998, when it was received by the Richards.
38. The Judge observed that this technical point should not operate to the disadvantage of the defendant in contempt proceedings, so as to render the defendant vulnerable to committal for contempt by a failure to comply during the backdated period (p 19). However, she does not seem to have considered the converse point, which is taken by Miss Richards in the grounds of appeal. Assuming the judgment of 12^th May was received by Mrs Richards before 4 pm on 18^th May 1998, and is therefore treated as having been “given or made” at that time, it would follow logically that the 8^th May order was superseded at that point, that is, before the time fixed for compliance.
39. These are very technical points, and it most unfortunate that they should have clouded what should have been a very clear-cut issue. We have considerable sympathy for the Judge in her attempts to deal with the deficiencies brought about to a large extent by failings of the court itself. Fortunately, we do not find it necessary to resolve them, because it seems to us that there are other answers, which are far more in tune with the true merits of the case.

Discussion

40. As we have noted, the Judge took a limited view of her discretion to dispense with the requirement for service before the time fixed for compliance. With respect to her, we think this was too narrow a view of the wide discretion conferred by paragraph (7). Unfortunately, the Judge’s attention does not seem to have been drawn to a decision of this court (Davy International –v- Tazzyman [1997] 1 WLR 1256), which makes quite clear the “unfettered” nature of the discretion conferred by that paragraph, even where it is exercised “retrospectively”.
41. No doubt, the Court must be careful before concluding that it is “just” to dispense with service, in a case not covered by the specific rules of sub-section (6). However, when considering the impact of the various orders, the Court is entitled to have regard to the realities of the matter. Subject to one point of detail, to which we shall come, all these orders were designed to achieve a single purpose namely the removal of the fence erected as long ago as 1995. To that extent it is wholly artificial to talk of “retrospectively” waiving the requirements for service in relation to the orders of July 2001. The power to fix a new time for compliance with a mandatory order (see RSC Ord 45 r 6) is intended to assist the enforcing claimant, not to put a procedural minefield in his way. There was no injustice to Miss Richards in proceeding on the basis that these later orders were simply reinforcing and continuing the effect of the order granted on 8^th May 1998, and in dispensing with the technical lapses of service along the way. As the Judge found, there was no doubt that at all times she knew perfectly well what was involved and what its consequences were. Any other view is an encouragement, as this case shows, for a persistent offender to use technicalities to defeat the purpose of the orders.
42. Accordingly, the reasons which led the Judge rightly to dispense with the personal service in relation to the order of 8^th May should have led her equally to dispense with the requirement under paragraph (2) of service of the other orders before the time fixed for compliance. Furthermore, the fact that the July 2001 orders were served only a few days before the application to commit, which might have been a serious objection in other circumstances, was of no practical importance in this case, and should not have been seen as an obstacle to committal for breach of those orders.
43. The one point of detail, which has been raised by Mrs Richards before us although it is not mentioned in the notice of appeal, is a difference of wording between the order of 12^th May as compared to the other orders. The orders of 8^th May 1998, 5^th October 1998 and 6^th July 2001 require Miss Richards to remove the “ fence” or “the fence and posts” by a specific time and date. The order of 12^th May 1998 differs by referring to “the fence and posts erected by her … on the plaintiff’s land”. Mrs Richards suggested that this discrepancy caused some confusion in the mind of Miss Richards as to precisely what was required for compliance. She had a further point about the reference in the orders to the fence having been erected in December 1995 by Miss Richards, whereas part of it was apparently moved in 1997, (according to Mrs Richards) by her without her daughter’s involvement.
44. The Judge dealt with these points very clearly. As we have noted, she had no doubt that Miss Richards knew precisely what was involved in the orders and what was the fence referred to. As to the second point, she said:

“I am quite satisfied on the evidence that apart from the length removed by the claimant, the fence remains in precisely the same position as it was in May 1998 when the first of the relevant orders was made. True it is that part of the fence erected in December 1995 had been moved further into the claimant’s land in or about September 1997 before the May 1998 orders were made. That movement had been referred to in the evidence filed for the trial though the fence continued to be referred to as the December 1995 fence apparently to distinguish it from certain fences which existed or been erected at an earlier stage by one or other of the parties. I am satisfied that, as everyone including the Defendant Mrs Richards understood, reference to the “December 1995” fence referred to the whole fence as it stood in May 1998. The mere fact that a number of posts had been moved further forward since that date does not render the fence overall any less of a fence erected in December 1995 within the meaning of the orders as the respondents know full well.” (p28).

Those conclusions are clearly right.

45. We accept of course that if there were any material discrepancy between the orders, then, in considering a committal for contempt, it would be right to give the defendant the benefit. However, Mrs Richards was unable to point to any prejudice arising from the difference of wording, nor any uncertainty in practice as to what was required for compliance; and none was identified by her legal advisers when drafting the grounds of appeal.
46. Once her primary contention as to the position of the boundary had been rejected, and the boundary had been determined in accordance with the surveyors’ agreement, there was and could have been no doubt about the effect of the order, with or without the reference to the plaintiff’s land. If there had been any doubt, Miss Richards has had ample opportunity, with the benefit of legal advice, over the four years since the order was first disclosed to her, to have taken steps to resolve it. It is quite clear that she and her mother have instead set themselves against any compliance with the terms of the order.
47. Finally, although the point is now academic, we have no doubt that the sentence of three months was an entirely appropriate exercise of the Judge’s discretion in view of the nature and extent of the breach. It is unfortunate that even that sanction has failed to bring the Richards to their senses and secure compliance with the order. Although Mrs Richards spoke for her daughter throughout, we attempted at the end of the hearing to hear from Miss Richards in her own words what it was she regarded as so important about this narrow strip, sufficient to justify this war of attrition, and even her own imprisonment. Her response indicated a misconceived belief that somehow she could re-open the decision about the boundary, and the issue of responsibility for the alleged waterlogging of her land. As we have said, those are no longer live issues. As to Mrs Richards, although she claimed to be acting for her daughter’s benefit, we find it impossible to understand how a mother could think it in the best interests of her daughter to persist in this wholly fruitless and damaging battle.
48. For these reasons the appeal is dismissed. The new committal application is remitted to the High Court, for hearing in Birmingham on 21^st October. Any consequential directions will be given by the Judge hearing the application.
Order: application for permission to appeal against the order for costs refused; respondent's application for permission to serve and file a respondent's notice allowed; appeal dismissed; no order for costs; application for permission to appeal to the House of Lords to be dealt with in writing. (Order does not form part of the approved judgment)