England and Wales Court of Appeal (Civil Division) Decisions

Tuohy & Ors v Bell [2002] EWCA Civ 423 (27th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE MARSHALL EVANS QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2002

Mr Justice Neuberger :

1. This is an appeal by Mr Robert Tuohy, against an order made by His Honour Judge Marshall Evans QC in the Liverpool County Court on 5^th November 2001, committing Mr Tuohy to prison for contempt of court for a period of seven days.

The facts

2. Mr and Mrs Tuohy started living at 25C St Andrew’s Gardens, Liverpool (“the premises”) in about 1976. They were both declared bankrupt in 2000. As a consequence, their interest in the premises vested in their Trustee in Bankruptcy, Mr Gary Bell, pursuant to section 306 of the Insolvency Act 1986. The Trustee asked Mr and Mrs Tuohy to give him possession of the premises, so that he could sell the premises with a view to the proceeds of sale being distributed to their creditors. However, they refused to vacate, and the Trustee applied to the Liverpool County Court for an order for sale and an order for possession.
3. On 11^th July 2001, District Judge Sykes made an order for the sale of the premises with vacant possession, and she also ordered that Mr and Mrs Tuohy “deliver up possession of the [premises] to the Trustee on or before 11^th October 2001”. Because the Trustee anticipated that Mr and Mrs Tuohy would not in fact vacate, his solicitor applied to the Liverpool County Court for a warrant for possession on 14^th August 2001, in the appropriate Form, N325, Request for Warrant for Possession of Land, apparently after discussing the matter with Miss Cooper, a member of the court staff.
4. An officially sealed warrant for possession in the appropriate form, Form N49, Warrant for Possession of Land, was issued, apparently the following day, 15^th August 2001. On 3^rd October 2001, Mr and Mrs Tuohy made an application to suspend the Warrant. That application was dismissed on 10^th October by District Judge Smedley. (An appeal was launched, but it was dismissed on 20^th November, and no stay was applied for or granted in the meantime).
5. On 15^th October 2001, three County Court Bailiffs, two Police Officers, a locksmith and an observer attended at the premises to execute the Warrant. Although Mr and Mrs Tuohy were at home, they refused to let the Bailiffs into the premises. Mr Tuohy was told by one of the Bailiffs that his failure to give up possession would result in an application for his committal to prison because of his failure to comply with the order for possession and because he was impeding the Bailiffs. Although possession was not obtained on 15^th October, because of Mr and Mrs Tuohy’s refusal to leave the premises or to afford the Bailiffs entry, Mrs Tuohy moved out shortly thereafter.
6. On the same day as the failed attempt to execute the Warrant, 15^th October, the Trustee applied in the County Court for the committal of Mr and Mrs Tuohy “for contempt of court because they have refused to comply with the Court’s order of 11^th July 2001 and have refused to comply with the Warrant for Possession when Bailiffs attempted to execute the Warrant on 15^th October 2001”. The application came before Judge Marshall Evans QC on 22^nd October, and he decided to adjourn the application to 5^th November. This was partly because the application was supported by witness statements, rather than by affidavits, as required by paragraph 3.1 of the Practice Direction – Committal Applications.
7. However, the Judge’s decision to adjourn the application was also influenced by the fact that, although they were present in Court, Mr and Mrs Tuohy were not legally represented. The Judge took the opportunity to tell Mr Tuohy that the order for possession was an order of the Court which was to be obeyed. The Judge also explained to Mr Tuohy in clear terms that failure to comply with the order could result in penalties, including committal to prison.
8. At the adjourned hearing of the contempt application on 5^th November 2001, Mr and Mrs Tuohy were represented by counsel. The Judge read the affidavits, heard some evidence from Mr Tuohy, and entertained argument from counsel for the Trustee and for Mr and Mrs Tuohy. He accepted that there were various defects in the application, but he was of the view that he could and should waive them. He decided not to make any order against Mrs Tuohy on the basis she had moved out of the premises and “her present position is co-operative”. He therefore adjourned the application against her.
9. However, the Judge decided to commit Mr Tuohy to prison for seven days on the basis of Mr Tuohy’s contempt. He concluded that he was entitled to commit Mr Tuohy to prison for contempt for three reasons. The first reason was Mr Tuohy’s failure to comply with the order of 11^th July; the second was Mr Tuohy’s failure to co-operate with the Bailiffs on 15^th October; the third reason was Mr Tuohy’s patent refusal in open court on the 5^th November to comply with the order of 11^th July. In connection with this last reason, Mr Tuohy said at that hearing: “I am not willing to comply with the order of the Court. I won’t leave unless I am thrown out… or sent to prison. …That is my carefully considered and final decision”.
10. Having satisfied himself that he had jurisdiction to commit Mr Tuohy to prison, the Judge decided that it was appropriate to do so, albeit only for seven days. He described this as “a short period which will give an opportunity for possession to be taken peacefully” and “the best solution to the problem”. He emphasised that there was no question of “vengeance” and that the purpose of the committal was “merely to see that the Order is obeyed”. In the event, Mr Tuohy served one and a half days in prison, during which time the order for possession was executed.
11. Mr Tuohy now appeals against the decision to commit him to prison, contending that each of the three grounds relied on by the Judge were flawed, and did not justify his imprisonment. I propose to consider first the impeding of the execution of the Warrant.

Contempt and the Warrant for Possession

12. Impeding a Bailiff of the County Court in executing a warrant can lead to prosecution by virtue of the provisions of section 10 of the Criminal Law Act 1977. That does not of itself mean that it constitutes civil contempt, nor, indeed, does it mean that it could not constitute civil contempt – see Szczepanski –v- Szczepanski (1985) 15 Fam Law 120. Indeed, that case shows that a civil court can deal with a contempt where it is appropriate to do so (as the Judge thought here) even if there is a risk of criminal proceedings.
13. A warrant for possession is not addressed to a defendant or any other person in occupation of premises: it is issued out of the County Court Office “to the District Judge and the Bailiffs of the Court”. Accordingly, as pointed out by Mantell LJ, it cannot be said that, by failing to comply with a warrant for possession of certain property, a person in occupation of the property is refusing to comply with a court order directed to him or served on him. However, at least in the absence of authority, it would seem to me pretty clear that impeding an officer of the court who is in the course of lawfully executing an order of the court, which is what a Bailiff is doing when executing a lawful warrant for possession, would constitute contempt of court, at least where the person concerned knows or clearly ought to know that what he is impeding is the proper execution of an order of the court.
14. There is relatively limited authority on the topic. In two cases, it has been held that, where an order for possession has been made in the High Court and has been executed through the medium of a writ of possession, a defendant who subsequently breaks back into the premises is in contempt of court. In Lacon –v- de Groat(1893) 10 TLR 24 at 24, Pollock B said this:

“Whenever the writ being put in force, the defendant… does not fully and honestly give up possession but only colourably does so the Judge applied to may and ought to find that the process of the court has not been obeyed and that there has been a contempt of court.”

This observation was quoted and applied by Roxburgh J in Alliance Building Society –v- Austen [1951] 2 All ER 1068.

15. While each of those two cases was concerned with a writ of possession in the High Court, which was, as it were, subsequently thwarted, it seems to me that they support the proposition that obstruction of a Bailiff seeking to execute an order for possession, pursuant to a lawful warrant for possession, would constitute a contempt. Nonetheless, as was emphasised in Alliance at [1952] 2 All ER 1069G, the contempt procedure should be invoked very rarely in such a context, a view supported by subsequent observations of the Court of Appeal in Danchevsky –v- Danchevsky [1975] Fam 17.
16. The point relied on by Mr Tuohy in support of his contention that he was not in contempt by impeding the execution, is that the Warrant was invalid. This is on the basis that it is only possible for a claimant, with the benefit of an order for possession in the County Court, to apply for a warrant for possession after the order for possession has taken effect (i.e., in this case, after 11^th October 2001), and that it is correspondingly only open to the Court to grant a warrant for possession after that date. Consequently, because the Warrant in the present case was applied for and granted well before the date on which possession was ordered to be given up, it is said that the Warrant was a nullity.
17. There is no doubt that the Warrant was applied for and issued prematurely. Order 26, Rule 17(2) of the County Court Rules (now in CPR Schedule 2 cc26) provides:

“….[T]he person desiring a warrant for possession to be issued shall file a request in that behalf certifying that the land has not been vacated in accordance with the judgment or order for the recovery of the said land.”

18. The closing words of that Rule make it clear, to my mind, that a warrant for possession can only be applied for after the date fixed for possession in the order. That is reflected in Form N325 which requires the claimant or his solicitor to sign a statement on the face of the Form certifying “that the defendant has not vacated the land as ordered” (emphasis added). It is also clear from the Form of Warrant itself, N49, on which, among other things, requires the insertion of the date on which possession has been ordered to be given. Towards the end of the Form of Warrant there is the operative part in capital letters, being the instruction to the Bailiffs:

“THE DEFENDANT HAS FAILED TO OBEY THE ORDER AND AT THE PLAINTIFF’S REQUEST THIS WARRANT HAS BEEN ISSUED. YOU ARE NOW REQUIRED TO GIVE POSSESSION OF THE LAND TO THE PLAINTIFF” (emphasis added).

19. The past tense in the first sentence and the present tense in the last sentence make it as clear as one could wish that such a warrant can only be issued after the date ordered for possession has passed. The importance of timing in relation to a warrant of possession is also emphasised by the fact that at the very end of the warrant there is this provision to be filled in:

“Application was made to this court for this warrant at … minutes past the hour of … o’clock on ….”

It is, I believe very unusual for any legal document, whether emanating from the Court or otherwise, to contain a precise time, as opposed to a day, on which something was done.

20. The Judge thought that the fact that the Warrant was applied for and issued before the date on which possession had been ordered to be given, 11^th October 2001, did not render the Warrant invalid. He took the view that the court would have had power to set aside the Warrant if an application had been made to that effect, but that, unless and until such an application succeeded, the Warrant was valid. He also pointed out that no complaint could be made about the execution in any event, because the Bailiff did not attend at the premises until after 11^th October, the date on which he should have given up possession pursuant to the terms of the order.
21. Although there is much to be said for that view, I have come to the conclusion that it is wrong, and that a warrant for possession issued before the date on which possession is to be given up pursuant to the court order is a nullity.
22. An order made by a judge of unlimited jurisdiction, for instance in the High Court, must be obeyed, and failure to observe it can amount to contempt of court, however irregular it might be, unless and until it is reversed or set aside: see Isaacs –v- Robertson [1985] 1 AC 97 at 101G to 103D. However, a warrant for possession is, in my judgment, of a very different nature from an order made by a High Court judge. First, the County Court is not a court of unlimited jurisdiction. Secondly, a warrant for possession is not issued pursuant to a judicial act; its issue is an administrative act. It appears clear that, if a claimant applies for a warrant for possession after the date for possession has expired, and fills in Form N325, the County Court Office will then issue a warrant for possession. There is no question of any hearing, of any party being entitled to make any representation, or of any judicial discretion, or even any judicial involvement.
23. However, the fact that the issue of a warrant for possession is an administrative act by the staff of the County Court is not of itself conclusive as to the issue of whether a warrant issued before the date ordered for possession is a nullity (as is contended on behalf of Mr Tuohy) or irregular (as the Judge thought, and as is submitted on behalf of the Trustee). The question of whether the issue of a document in a manner or at a time which fails to comply with the requirement of a Statute, a Statutory Instrument, or Rules of Court, renders the document void (in which case it is wholly ineffective) or irregular (in which case it can, but not necessarily will, nonetheless be valid) inevitably depends upon the language used and the purpose of the document and the requirement, and the provisions of which the relevant provisions form part.
24. Some guidance to the correct approach can be gathered from the decision of this Court in Secretary of State for Trade and Industry –v- Langridge [1991] Ch. 402. In that case, at [1991] Ch 411H to 412A, Balcombe LJ suggested that a useful approach in the context of a Statutory requirement was to consider the following four questions:

“(1) What is the scope and purpose of the Act? (2) What is the importance of the [the requirement as I have called it]? (3) What is the relation of that requirement to the general object to be secured by the Act? (4) What are the relevant circumstances of the present case?”

The fourth question must, I think, only relate to the issue of how the Court should exercise its discretion if the document is irregular, rather than to the question of whether it is irregular or a nullity.

25. In the present case, it appears to me that the language of the relevant Rule and of the prescribed forms, the purpose of the time limit, and policy considerations all point in favour of a warrant which has been issued prematurely being a nullity rather than irregular. The way in which Order 26, Rule 17(2) is worded makes it clear that there is no question of a claimant having a contingent right to a warrant as soon as the possession order is made, with a fetter on that right, namely having to wait until the date for possession comes up. It is expressed in a way that indicates that there is simply no right in a claimant to seek a warrant until the date for possession has passed and possession has not been delivered up. To my mind, that is a different position from that in Langridge [1991] Ch 402, where a 10-day notice had to be served before proceedings could be issued. The effect of the Statutory language, as construed by the majority of the Court of Appeal, was that, at the date of issue, the right to issue proceedings had indeed arisen, but that a prior procedural step should have been taken. However, that step, the service of the 10-day notice, was not mandatory. In this case on the other hand, it is, as it were, of the essence of a warrant for possession that it only can be brought into existence after the date ordered for possession has passed.
26. So far as the prescribed Forms are concerned, the importance of the date for possession having passed before a warrant can be issued could not be clearer. On the face of the application for the warrant, Form N325, the claimant must formally and unambiguously certify that possession has not been given up in accordance with the order. Even more crucially, in the most important part of the warrant itself, Form N49, the Bailiff is ordered to deliver possession to the claimant “now”. In other words, the warrant for possession, which is essentially an internal document passing within the court office, from a member of the court issuing staff to the Bailiffs Department, requires possession to be delivered by the Bailiff effectively at once. In my view, it is not possible to marry up that mandatory direction in the operative part of the warrant with the notion that the warrant would be valid if it was issued before it was lawful for the Bailiff to deliver possession to the claimant.
27. Further, it appears to me that it would be inconvenient and unsatisfactory if a claimant could apply for a warrant before the date for possession had arrived. It would mean that the Bailiffs’ diary at every County Court would be taken up with appointments which would turn out to be unnecessary because the defendant subsequently vacates on the date fixed for possession. That would have the undesirable effects of decreasing the efficiency of the County Court Bailiffs, and of penalising claimants who observe the County Court Rules and wait until the possession date had passed before applying for a warrant. Furthermore, as Kennedy LJ pointed out during argument, if a warrant for possession can be issued before the defendant has failed to comply with the possession order, it could work unfairly on a defendant, because the issue of the warrant might be picked up by a credit agency. That point is reinforced when one considers that, if a warrant for possession can be issued before the defendant is in breach of the order for possession, then it would seem to follow that a warrant for failure to deliver up goods, or a warrant of execution in the case of a debt could be issued prematurely. In this context, Order 26, Rule 16, and Forms N323 and N46, for delivery up of goods, and Order 26, Rule 1 and Forms N323 and N42, for execution on a debt appear to raise the same points as those I have raised in relation to Order 26, Rule 17 and Forms N325 and N49. The consequences in terms of credit rating are, I would have thought, even more apparent in those other types of cases.
28. In light of these considerations, I do not accept that a warrant, which was plainly invalid and also unenforceable in accordance with its terms when issued, can or should subsequently achieve validity. It also seems to me unfair to impose on the defendant an obligation to apply to set aside an invalid warrant, failing which it would be enforceable against him, but that is what the Judge’s conclusion on this point would involve. After all, the majority of orders for possession made in the County Court are in respect of homes belonging to relatively poor and unsophisticated individuals, in favour of landlords who are frequently substantial reasonably sophisticated organisations, and who will almost always have access to legal advice.
29. It is true that it would appear to flow from the conclusion, that a prematurely issued warrant is invalid, that a bailiff purporting to execute such a warrant may be liable for wrongful execution. In the first place, it is not easy to see what damages could normally be claimed, if the premature warrant was executed after the date possession had been ordered. The defendant would have had no right to remain in the premises, and while the warrant would be, in my view, void, he would be very unlikely, as I see it, to suffer any damage by the mere fact of having been evicted pursuant to an invalid warrant. Secondly, if no claim could be made against a bailiff because the warrant was invalid, it might lead to the conclusion that a defendant would have no claim if the warrant was not merely issued prematurely, but was also executed prematurely (which is perfectly possible given that the warrant directs the bailiff to execute possession straight away). That would be a surprising and unfair outcome. Thirdly, if, as I think, no County Court should ever issue a warrant for possession until the date for possession has passed, it appears to me that, while the bailiffs are entitled to all the protection the Courts can properly give them, their complaint if they are sued as a result of executing an invalid warrant is not against the state of the law, but against the County Court for wrongly issuing such a warrant. Fourthly, as the warrant must record the day, indeed the time, on which the warrant was applied for, the Bailiff can see from the face of the warrant whether it was applied for prematurely.
30. For these reasons, I am of the view that the Warrant in the present case was invalid, and that it must follow that Mr Tuohy could not have been in contempt of court for having obstructed its execution. It should be added that if I had thought that the Warrant was merely irregular, then the Judge would have been right in concluding that Mr Tuohy’s behaviour, namely keeping the door to the premises locked, refusing to let the Bailiffs into the premises, and refusing to vacate the premises, constituted contempt of court, particularly as the evidence establishes that he was plainly warned at the time that the Bailiffs were executing a court order.

Contempt and the order for possession

31. I turn to consider whether the Judge was entitled to commit Mr Tuohy on the grounds of his failure to comply with the order for possession. In this connection, it appears to me that, at least where an order for possession requires a defendant to deliver up possession of a particular property on or before a particular date, a defendant who fails to comply with such an order may be guilty of contempt of court. That is the effect of the County Court Rules. Order 26, Rule 18 states that the provisions of Rules 16 and 17 (which provide for orders for delivery of goods and orders for possession of land to be enforceable by warrants) “shall [not] prejudice any power to enforce a judgment or order for the delivery up of goods or the recovery of land by an order for committal.”
32. Further, Order 29, Rule 1(1), now CPR Schedule 2cc 29, provides:

“Where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order… then, subject… to the provisions of these Rules, the judgment or order may be enforced, by order of the Judge, by a committal order against that person…”

Particularly in light of the way in which the possession order was phrased in the present case, I think that it is plain from the language of the Rule that Order 29, Rule 1(1) applies to that order.

33. Quite apart from this, the fact that a defendant’s failure to comply with an order which requires him to give possession by a certain date can amount to contempt is supported by a number of matrimonial cases, where one of the spouses or former spouses has obtained an order for sale with vacant possession of the former matrimonial home. A comparatively recent example is the decision of this Court in Jolly –v- Jolly [2000] 2FLR 69. An earlier case, to which I have already referred, is Danchevsky [1975] Fam 17, where, although the Court of Appeal reversed the Judge’s order committing the husband to prison, it is clear that all three members of the Court of Appeal considered that he was in contempt of court. The only issue was the appropriate way of dealing with the problem. The case is also important in the present context because it emphasises that committing a defendant for failing to deliver up possession in accordance with a court order is very much of a last resort, and is only appropriate in exceptional cases. Lord Denning MR said this at [1975] Fam 22A:

“Whenever there is a reasonable alternative available instead of committal to prison, that alternative must be taken.”

34. The principal grounds for attacking the Judge’s decision to commit Mr Tuohy to prison on the basis of his failure to deliver up possession in accordance with the order of 11^th July may be characterised as technical or procedural. I do not intend that description to be pejorative: particularly in the context of an application for a committal order, the respondent, whose liberty is under threat, is entitled to expect the requirements laid down in the Rules of Court and Practice Directions to be complied with.
35. The first point taken on behalf of Mr Tuohy in this connection is that there was no penal notice attached to the possession order, i.e. no notice specifically warning him that, in the event of his failing to comply with the order, he would be at risk of being fined or sent to prison for contempt of court. In this connection, it is necessary to consider the provisions of Order 29 of the County Court Rules in a little detail.
36. I have already referred to Rule 1(1). Order 29, Rule 1 continues:

“(2)Subject to paragraphs (6) and (7), a judgment or order shall not be enforced under paragraph (1) unless… a copy of the judgment or order has been served personally on the person required to do or abstain from doing the act in question…;

(3) Where a Judgment or order enforceable by a 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, and in any other case on the request of the judgment creditor, 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);

(4) If the person served with a judgment or order fails to obey it, the judgment creditor may issue… an application notice seeking the committal for contempt of court of that person and subject to paragraph (7) the claim form or application notice shall be served on him personally;

…

(6) A judgment or order requiring a person to abstain from doing an act may be enforced under paragraph (1) notwithstanding that service of a 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 sought to enforce the judgment or order 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) …[T]he 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 just to do so;

…”

37. These provisions appear to me to raise a number of relevant questions. First, it is somewhat difficult to identify what is meant by a “judgment or order… in the nature of an injunction” in paragraph (3): it appears to extend more widely than injunctions, but it is a little difficult to discern how much further it goes. It was suggested in argument that it would cover all orders which required a defendant to do or not to do something, but that cannot be right. It is inconsistent with the opening words of Order 29, Rule 1(1). Further, with the exception of a declaration, any order of the court against a defendant requires him to do something or to abstain from doing something. In any event such a wide meaning would leave no room for “any other case”. In my view, at least in the context of paragraph (3), the words “in the nature of an injunction” should be interpreted relatively narrowly, and they do not include an order for possession. The notion that the expression is to be construed narrowly is supported by the decision of this court in re P (Minors) [1990] 1 WLR 613. In that case, the County Court had made a consent order giving joint custody of two children to the parents, with care and control to the mother. The order directed that the children should not be removed from England and Wales, and, on the basis of that provision, the County Court Judge ordered the inclusion of a penal notice pursuant to Order 29, Rule 1(3). The Court of Appeal held that, although the provision was part of a court order, and it clearly prohibited the parties to the proceedings from doing something, it was “neither an injunction nor in the nature of an injunction” (see per Lloyd LJ at [1990] 1 WLR 615D).
38. More specifically in relation to the present case, if an order for possession “is an order in the nature of an injunction”, then it would seem to follow from the plain words of paragraph (3) that every order for possession should, as a matter of course, have a penal notice attached. Such a suggestion would, I believe, cause surprise, even consternation, in every County Court in England and Wales. It would mean that, for over fifteen years, virtually every possession order that has been issued out of a County Court has failed to comply with the County Court Rules. Quite apart from this, I cannot believe that it could have been the intention of those who drafted the County Court Rules that every possession order made by the County Court should routinely contain a penal notice. The majority, indeed I suspect the great majority, of possession orders made in the County Court are in respect of the defendant’s home. It is upsetting enough for a person to receive a court order requiring him to leave his home; it would add to the pressure if he was warned that, if he did not leave on the date specified in the order, he would be liable to be put in prison. Many people against whom possession orders are made hope, expect, or are entitled, to be re-housed by the Council, and I believe that it often happens that their re-housing cannot be arranged until after the date on which the possession order is to take effect. The worry of a person who has been served with an order with a penal notice in that situation is self-evident. Further, the notion that a penal notice should routinely be attached to a possession order also appears to me to be inconsistent with the view expressed by Lord Denning MR in Danchovsky at [1975] Fam 22A.
39. The second difficulty with Order 29 is that it is unclear from paragraph (3) whether a judgment creditor can require a judgment or order to be reissued with a penal notice, if it was originally issued without a penal notice. I would have thought that the answer is in the affirmative, although there is an argument for saying that, once a judgment has been issued, it cannot be issued again.
40. A third problem is that the consequence of there being no penal notice, appears to be rather left in the air. There is obviously a strong argument for saying that the intention of Order 29, Rule 1, read as a whole, is that if a claimant wishes to apply to commit a defendant for contempt under Order 29, Rule 1, then, subject to the dispensing provisions in that Rule, the order must have a penal notice attached, and the purpose of paragraph (3) is to ensure that a penal notice is attached on every order “in the nature of an injunction” and to leave it to the claimant to apply for the attachment of a penal notice in any other case. While I consider that view is correct, and seems to have been assumed to be correct in previous cases (e.g. Jolly [2000] 2 FLR 69), it involves implying words into Order 29 which are not strictly speaking there.
41. A fourth unsatisfactory feature of Order 29 is the strange relationship between paragraphs (6) and (7). The former paragraph appears to give the court the power to dispense with service of a copy of the judgment, but only in a case where the order is prohibitory and only where the defendant has been appropriately notified of the order. It is not entirely easy to see the point of that limited exception given that there is a general power to dispense with service of a judgment, as appears to be the effect of paragraph (7). To my mind, the way to reconcile the provisions, is that the terms of paragraph (6) emphasise that the more general power in paragraph (7) is to be exercised relatively sparingly, but it is fair to say that paragraph (7) is expressed in terms of a wide and unfettered discretion.
42. In Soufroniou –v- Szgetti [1991] FCR 332 at 334A, Neill LJ suggested that “the dispensing power provided by paragraph (7) is intended to be exercised prospectively”. However, that obiter observation cannot stand in light of the decision of this Court in Jolly [2000] 2 FLR 69, where it was stated that the paragraph entitled the court “to proceed to consider a proper notice of application to commit notwithstanding the absence of a penal notice or the judgment itself” – per Judge LJ at [2000] 2FLR 75C.
43. A fifth point which can be made about Order 29 is that it seems curious that service of the copy judgment under paragraph (2) and service of the application under paragraph (4) can be dispensed with, but there is nothing which specifically provides that service of the penal notice under paragraph (3) can be dispensed with. Given the way in which paragraph (3) is worded, it appears to me that the answer is that, given that the order is to be “endorsed with or incorporating” the penal notice, dispensation with the service of the order carries with it dispensation of service of the penal notice. That still leaves one with the conundrum that, if the order is served without a penal notice, then it could be said that there can be no need to dispense under paragraph (7) with service of the order, and therefore there is no power to dispense with service of the penal notice, because there is no express reference to paragraph (3) in paragraph (7). While, as a matter of pure language, that point has force, I do not consider that it is right, and, even if I thought it was right, it seems to me that we would be bound to reject it on the basis that the point was considered and rejected by this court in Jolly at [2000] 2 FLR 77D-G per Peter Gibson LJ.
44. In these circumstances, I consider that it would not have been open to the Judge to commit Mr Tuohy to prison for breach of the order for possession, unless it was proper for him to have exercised his power, under Order 29, Rule 1(7), to dispense with the requirement that the possession order should have been served with a penal notice before Mr Tuohy could have been committed for breaching it.
45. I now turn to the defects relied on by Mr Tuohy in connection with the contempt application. They are as follows:

The wrong form was used for the contempt application: because these were insolvency proceedings, a form of application prescribed by the Insolvency Rules 1986, and not by the County Court Rules, should have been used;

The contempt application did not state that the application was made in the proceedings in question and contain the same “title and reference number” as that on the order for possession, contrary to paragraph 2.2(3) of the Practice Direction;

The application failed to “set out in full the grounds on which the committal application is made”, and it failed to “identify separately… each alleged act of contempt” as required by Rule 2.6(2) of the Practice Direction: thus, it failed specifically to identify the refusal to unlock the door, the keeping out of the Bailiffs, and the refusal to vacate the premises;

Also in breach of paragraph 2.6(2) of the Practice Direction, the Trustee failed to “identify… numerically each alleged act of contempt”;

The application did not comply with paragraph 2.6(5) of the Practice Direction, which requires such an application to “contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing”.

46. Where an application is made to commit a defendant for contempt of court, it is obviously important that great care is taken by the applicant and his advisers to ensure that all the procedural requirements are met. As the respondent’s liberty is at risk, there will always be a substantial risk that the court will not be prepared to commit him to prison, however much he may be in contempt of court, on the basis of an application which is procedurally defective. On the other hand, a person who is in contempt of court and who should otherwise be committed to prison, cannot expect to avoid being committed simply because of some defect in the procedure which in no way has prejudiced him.
47. In this connection, the modern approach of the court to the exercise of its discretion to waive technical and procedural defects in contempt applications has been authoritatively described by Lord Woolf MR in Nicholls –v-Nicholls [1997] 1 WLR 314, in the following terms at 326A-D:

“Like any other discretion, the discretion provided by the statutory provisions, must be exercised in a way which in all the circumstances best reflects the requirements of justice. In determining this the court must not only take into account the interests of upholding the reputation of civil justice in general. Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld. If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case, then this has the effect of undermining the system of justice and the credibility of the court orders. While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice. As long as the order made by the judge was a valid order, the approach of this court will be to uphold the order in the absence of any prejudice or injustice to the contemnor as a consequence of doing so.”

48. Consistently with this approach, there is the general dispensing power given to the court under Order 29, Rule 1(7) so far as compliance with paragraphs (2), (3) and (4) of Order 29, Rule 1 are concerned. As to compliance with the provisions of the Practice Direction, paragraph 10 is in these terms:

“The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.”

49. It is always a cause for concern if there are any technical or procedural defects in a contempt application. In the present case, it is of particular concern that counsel on behalf of Mr Tuohy has been able to identify so many different defects, and it is not surprising that he advances the argument that the combination of defects in the present case are such that the judge should not have committed Mr Tuohy. However, at least for my part, I think it is wrong simply to conclude that, because there are so many defects in the application, it must have been unsafe to commit Mr Tuohy to prison. The proper approach is to consider each of the defects relied on by Mr Tuohy, and to describe whether they caused any prejudice or unfairness to him, taken separately or together.
50. The failure to use the right form can have caused no conceivable prejudice to Mr Tuohy: the information on the two forms is the same. The difference in the action number does not seem to me to be a good point. Both the order for possession and the committal application were headed with the reference numbers of the bankruptcy proceedings of Mr Tuohy and Mrs Tuohy (albeit in a different order). The fact that the application has an additional reference does not appear to me to represent a breach of paragraph 2.2(3) of the Practice Direction. If that is wrong, it cannot be, and has not been, suggested that any conceivable prejudice was thereby caused to Mr Tuohy.
51. As to the failure to identify in the application the precise nature of the breaches of the order relied on, and the failure to number those breaches, I believe that is also a complaint with no real merit. The words in the application identify what is relied on, namely that Mr Tuohy failed to comply with the order of 11^th July, and the reference to his failure to comply with the warrant for possession made it clear what was being complained of, namely his failure to deliver up possession. As it is conceded, quite rightly in my view, that the failure to deliver up possession was a continuing breach of the court order with effect from 11^th October, it appears to me that the reference in the contempt application to failing to deliver up possession on 15^th October was perfectly apt. In any event, on the facts of this case, there is not the slightest possibility of Mr Tuohy having been in any doubt at all as to what was being complained of when he was served with the contempt application.
52. The strongest points available to Mr Tuohy are based on Order 29, Rule 1(3) and paragraph 2.6(5) of the Practice Direction. Mr Tuohy was not given notice when first served with the possession order or thereafter (if the order should have been reissued with a penal notice, after it was first served on him) or in the committal application itself, that non-compliance with the possession order could lead to his being committed to prison for contempt of court. Those are serious defects, the combination of which would often be easily enough on their own to persuade the court that it would be quite wrong to commit a respondent. However, on the unusual facts of this case, I am satisfied that there is nothing in those failures which prejudiced Mr Tuohy in any way.
53. The purpose of giving notice in writing to a defendant to the effect that his failure to comply with a court order could lead to his being sent to prison, is to bring home to him the terms of the court order and the seriousness of his failing to comply with that order, and to give him a proper opportunity to consider his position, to take advice, and to make appropriate arrangements. In the present case, I think that, by the time the Judge decided to commit Mr Tuohy, he had had every possible opportunity to appreciate and consider his position, and it is quite unrealistic to think that he would have been any better off on 5^th November, if he had been served with a penal notice on the possession order or on the application, or, indeed, if any of the other defects had not occurred.
54. First, Mr Tuohy was very well aware of the existence of the order for possession, the fact that it required him to give up possession of the premises on 11^th October, and his duty to comply with it. He was in court when the order for possession was made by the District Judge on 11^th July. He was, I think, served with the order for possession. He knew of the Warrant and its effect, because he made an application to set aside the warrant for possession on 3^rd October. He was specifically told that he should give up possession by the Bailiff on 15^th October. It was clear from terms of the contempt application that this was his obligation. The Judge made it very clear to him on 22^nd October that he was obliged to vacate the premises, and, indeed, repeated the point to him in very clear terms at the hearing of 5^th November.
55. Secondly, Mr Tuohy was very well aware, and had been very clearly warned, of the risk of his being committed to prison if he did not comply with the court order, and in particular if he did not vacate the premises. That was spelt out to him in terms by the Bailiff on 15^th October. It would also have been clear to him from the contempt application which specifically asked for him to be committed to prison for contempt because he had failed to comply with the order. Further, it was spelt out to him unambiguously by the Judge at the hearing of 22^nd October, and, more than once on 5^th November.
56. Thirdly, as is stated in the judgment, Mr Tuohy himself had told the Judge on 5^th November that he had well understood the position, and, indeed, had had every opportunity to consider it. Not only had his obligations and the risks he was running been pointed out on a number of occasions, most obviously by the Judge himself on 22^nd October, but Mr Tuohy had the benefit of counsel’s advice. In the passage I have already quoted from the judgment, the Judge recorded that Mr Tuohy said on 5^th November that he would not leave the premises without being thrown out or being sent to prison, and that this was not merely his “final decision” but that it had been “carefully considered”.
57. In my opinion the Judge was right not to seek to deal with the contempt application on 22^nd October. Not only was it sensible to adjourn the application to enable Mr Tuohy to obtain legal representation and advice; it was also correct to give Mr Tuohy a clear and unambiguous warning that he should comply with the order for possession and that, if he did not do so, he would risk being sent to prison when the application was renewed, namely on 5^th November. In light of the procedural defects, and in particular the absence of penal notices on the possession order and the application, it may well have been wrong for the Judge to have committed Mr Tuohy on the 22^nd October. However, by the 5^th November, any conceivable prejudice to Mr Tuohy arising out of the absence of written notice of the risks he was running had been wholly dissipated.
58. In these circumstances, I consider that it would have been inconsistent with the approach laid down by the Court of Appeal in Nicholls [1997] 1 WLR 314, if on 5^th November the Judge had decided that he did not have jurisdiction to commit Mr Tuohy for not having complied with the order for possession, if only for a short period for the purpose of enabling possession to be obtained. Indeed, in light of Mr Tuohy’s obdurate and expressed determination not to give up possession, it seems to me that the Judge was reasonable in his conclusion that he should send Mr Tuohy to prison for a short time to enable possession to be obtained without the risk of violence.
59. Thus, it appears to me that this was one of those exceptional cases where the court was left with little alternative but to commit a defendant to prison simply for the purpose of enabling the court’s order to be executed effectively and peacefully. In this connection, we were told that many County Courts do not now encourage or even permit their bailiffs to resort to physical coercion against the people in possession of premises when executing a warrant for possession. If that is right, then it may mean that applications to commit defendants against whom possession orders have been made, and who thwart execution of such orders, will, or already have, become more common. I think it is sensible to take this opportunity to emphasise that, at any rate in my view, the appropriate points to bear in mind in such cases are as follows. First, committal for contempt of court in any such case is a last resort. Secondly, it is generally undesirable that a penal notice should be attached to a possession order, unless there are good and exceptional grounds. Thirdly, the normal way to enforce a possession order is by requesting and obtaining the issue of a warrant for possession. Fourthly, as this case shows, a warrant should be applied for only after the date for possession has gone without the defendant vacating. Fifthly, if the last resort of a contempt application appears necessary, then it is normally more appropriate for the contempt application to be based primarily on the defendant’s obstruction of the bailiff when executing the warrant for possession, albeit that in some cases it may be right to rely on the possession order itself. In such a case, it would then be sensible to serve a copy of the order for possession with a penal notice, albeit only once the warrant has not been successfully executed due to the defendant’s obstruction. Sixthly, to avoid the risk of wasting costs or of unfairness on a defendant, care should be taken to ensure that any committal proceedings comply with the requirements of the Rules and the Practice Direction.

Contempt and the refusal to vacate on 5^th November

60. The fact that Mr Tuohy said in court in the clearest possible terms on 5^th November that he would not vacate the premises was a factor which the Judge was entitled, indeed obliged, to take into account when considering whether committal was an appropriate way of dealing with Mr Tuohy’s contempt in failing to give up possession in accordance with the order of 11^th July 2001. In effect, the Judge was entitled to treat his behaviour as an aggravating factor, in the same way as he was entitled to treat Mrs Tuohy’s change of heart as a mitigating factor.
61. However, the narrower point which has to be considered is whether, taken on its own as it were, Mr Tuohy’s statement in court on 5^th November, to the effect that he would continue not to comply with the court order requiring him to give up possession of the premises, itself constituted a contempt of court for which he should have been committed.
62. On behalf of the Trustee, it is contended that the Judge had power to commit Mr Tuohy for his statement on 5^th November in court that he would not comply with the order for possession, by virtue of section 118(1) of the County Courts Act 1984. This provides:

“If any person –

(a) wilfully insults a judge of a County Court… during his sitting or attendance in court…; or

(b) wilfully interrupts the proceedings of a County Court or otherwise misbehaves in court;

any officer of the court, with or without the assistance of any other person, may by order of the judge, take the offender into custody and detain him until the rising of the court and the judge may, if he thinks fit… commit… the offender for a specified period not exceeding one month… or… impose upon the offender… a fine… or may both make such an order and impose such a fine.”

63. In my judgment, it is impossible to state as a general proposition whether or not a statement by a defendant in open court that he will not comply with a court order amounts to “wilfully insult[ing]” the Judge. At one extreme, one could conceive of a defendant, against whom the Judge has just made an order for possession of his home in 28 days, saying that he will not go voluntarily, and will have to be evicted. To my mind, it would be wrong to regard such a statement, particularly made in the heat of the moment, as amounting to more than a statement of a present intention to do what could amount to a contempt. Of itself, it could not seriously be said to risk bringing the court into disrepute, or even to amount to a serious challenge to the authority of the court, let alone to constitute an interruption to the orderly conduct of the court, which are the sort of considerations which lie behind section 118. As I see it, such an outburst should, at the most, be met by a warning from the judge that failing to comply with a court order, and in particular obstructing the bailiff executing a valid warrant, could amount to a contempt of court and could lead to the defendant’s committal.
64. At the other end of the scale, one can envisage a case where the order for possession has expired, the execution of a valid warrant has been unlawfully impeded, and the defendant having been properly warned of the consequences, rudely and unambiguously maintains in open court his intention to thwart any attempts to execute the order for possession. In my judgment, such behaviour would fall within the ambit of section 118 because the circumstances and manner of the refusal to comply with the court order would be such that the defendant would be insulting the court; the defendant would be openly and wilfully challenging and denying the authority of the Judge in open court.
65. I think that the right conclusion in the circumstances of this particular case, is that Mr Tuohy’s behaviour in court on 5^th November fell on what, from his point of view, was the wrong side of the line. It is true that, although the circumstances were such that Mr Tuohy had apparently impeded the execution of a warrant for possession, the Warrant was in fact invalid, and that Mr Tuohy was not noisy or disruptive in court. However, it had been made clear to him on a number of previous occasions that his failure to deliver up possession after 11^th October not only involved him being in persistent breach of the order for possession, but also put him in contempt of court, and liable to be imprisoned. Having considered the matter carefully, he maintained his defiance of the court, not merely in refusing to delivery up possession, but in telling the Judge that he would continue to do so and risk going to prison, even though the Judge gave him a number of opportunities at the hearing of 5^th November to reconsider his position. In my view, that behaviour brought Mr Tuohy within the ambit of section 118 of the 1984 Act.
66. Having said that, if this had been the only ground for committing Mr Tuohy to prison, either on the assumption that there had been no application to commit for breach of the order for possession or because the Judge had concluded that the defects in the committal application had prejudiced Mr Tuohy, I rather doubt that it would have been appropriate to commit Mr Tuohy to prison there and then for what on this hypothesis would have been his only contempt, namely his open and defiant refusal to comply with the court order. On this hypothesis, I think it would have been appropriate for the Judge to have adjourned the matter for a further period with a view to a proper application to commit being prepared and served on Mr Tuohy.

Conclusion

67. In these circumstances, I do not consider that the Judge was entitled to commit Mr Tuohy to prison for impeding the execution of the Warrant, and I rather doubt that it would have been appropriate to commit Mr Tuohy solely for his defiance of the court on 5^th November. However, on the very unusual facts of this case, I am of the view that the Judge was entitled, indeed right, to commit Mr Tuohy to prison for a very short period for his contempt in refusing to comply with the order for possession, notwithstanding the Trustee’s failure to comply in a number of respects with the provisions of the County Court Rules and the Practice Direction.
68. In these circumstances, I would dismiss this appeal

Lord Justice Mantell:

69. As was shown by Nicholls –v- Nicholls (1997) 1 WLR 314 at 321 per Lord Woolf MR (as he then was):

“While these requirements of Ord. 29, r.1 are there to be observed, in the absence of authority to the contrary, even though the liberty of the subject is involved, we would not expect the requirements to be mandatory, in the sense that any non-compliance with the rule means a committal for contempt is irremediably invalid.”

70. And since I would regard the procedure required under Ord. 29, r.1 (now CPR Schedule 2 cc 29) as being at least as fundamental as any contained in CPR Schedule 2 cc 26 I would not consider the warrant for possession to be a nullity, irregular though it certainly was. The warrant was never set aside and no application to have it set aside was ever made. As its execution after due date occasioned no prejudice to Mr and Mrs Tuohy I would uphold the Judge’s ruling that to resist the bailiff as was done in this case amounted to a contempt of court. To that extent I would respectfully differ from my lord, Mr Justice Neuberger.
71. Otherwise I am in total agreement with his conclusions and the reasons for them. Accordingly, I too, would dismiss this appeal.

Lord Justice Kennedy:

72. I agree with the judgment of Mr Justice Neuberger, and I too would dismiss this appeal.
Order: Appeal dismissed with the costs subject to detailed assessment save respondent's ability to pay said costs, if any, be assessed by costs judge with liberty to apply for such purpose. The respondent has liberty to apply for costs against the Legal Services Commission. Detailed assessment of appellant's costs. Insofar as costs of respondent not recovered from any other source they be costs in bankruptcy. (Order not part of approved judgment)