England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STOCKPORT
COUNTY COURT SITTING IN LIVERPOOL
HIS HONOUR JUDGE HOWARTH

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 June 2004

Lord Justice Sedley :

1. This is the judgment of the court. It sets out our reasons for having, at the conclusion of argument on 20 May 2004, dismissed the appeal. For reasons which will appear, we have treated the matter before us as a full appeal regardless of the very considerable lapse of time.
2. Mr Scriven is at present serving six months' imprisonment for contempt of court in refusing to submit to his public examination in bankruptcy. Although the order for his committal was made as long ago as 5 July 2002, it was not implemented until 17 March 2004. It is partly because the intervening delay is not entirely explained on the Official Receiver's part (though it has much to do with Mr Scriven's peripatetic existence) that we have readily enlarged time. A further reason for doing so is that if, as is contended on his behalf, Mr Scriven has been unlawfully imprisoned, it is not too late to restore at least some of his lost liberty.
3. Mr Scriven has been represented throughout by his colleague Ms Rayne. With our permission she has addressed us in support of her written submissions. She has put Mr Scriven's case with acuity and persistence.
4. The matter of Mr Scriven's imprisonment has already been before the divisional court (Gage and Keith JJ) and this court (Tuckey and Laws LJJ). In the course of the proceedings it was established that Ms Rayne's application on Mr Scriven's behalf for a writ of habeas corpus was inappropriate, and that if there was a remedy it lay by way of an appeal out of time against the committal order and against the committal itself. Such an appeal lies as of right under section 13 of the Administration of Justice Act 1960.
5. This court on the previous occasion therefore dismissed the application for habeas corpus but adjourned the appeal to an expedited hearing – the hearing before us – in order to establish what was the true character of the proceeding on 29 August 2001 at which Mr Scriven was held to have acted in contempt of court.
6. Adjourning the matter, Laws LJ said this:

19. I consider that on the material we have so far seen there must be a doubt as to the nature of the hearing on 29^th August 2001. I shall first refer to a document in our papers which appears to be a charge sheet issued, I think, by the Greater Manchester police. It contains these entries: Date of Charge 2/7/01, Court: Stockport County, First Appearance Date 4/7/01, and then this under the words "Charges in Full":

"Fail to surrender to bail (at appointed time). Offence Code

No.074.

You, having been released on bail in criminal proceedings, failed without reasonable excuse to surrender to custody at 10.30 18/6/01

at Stockport County Court.

Contrary to section 6(1) and (7) Bail Act 1976."

Then below that:

"Fail to surrender to bail (as soon as practical). Offence Code No.075.

You, having been released on bail in criminal proceedings, and having reasonable cause [sic] for failing to surrender to custody at 10.30 18/6/01 at Stockport County Court, failed to surrender at that place as soon after that time as was reasonably practicable.

Contrary to section 6(2) and (7) Bail Act 1976"

I surmise that this related to Mr Scriven's failure to attend court on 18^th June 2001 pursuant to the order of 19^th March 2001; but for my part I do not understand the reference to "released on bail in criminal proceedings."

20. Then we have the order which was the drawn order made by His Honour Judge Caulfield on 4^th July 2001 in the County Court. This is an important document because it refers to the forthcoming hearing which eventuated on 29^th August. The drawn order contains these matters:

"In the STOCKPORT County Court

In Bankruptcy…

Upon hearing Mr Scriven in person and Mrs Prince from the Official Receiver's Office

In the Matter of the Insolvency Act 1986.

IT IS ORDERED THAT

1. The hearing be adjourned to 29^th and 30^th August 2001 at 10.30am (Estimated length of hearing 2 days) at Stockport County Court…

2. Mr Scriven is released from custody in respect of these proceedings unless and until any further Order is made.

3. Mr Scriven is to attend the adjourned hearing.

4. Mr Scriven is to set out concisely in writing all the matters which he considers to be relevant to the issues before the Court.

Such matters are to be set out so far as is practical in chronological order with relevant documents in an indexed and paginated bundle and are to be filed with the Court [and then the appropriate place is given] and served on the Official Receiver…

5. The Official Receiver is to file and serve a reply by 4.00pm on 20^th August 2001 in respect of each matter (even if only to assert that the matter is not relevant and giving brief reasons for the assertions).

IT IS RECORDED THAT

Whilst Mr Scriven is given opportunity to set out in writing all these matters which he wishes to have considered in relation to issues before the Court. The Court may be satisfied that all or any of such matters are not relevant."

21. I have to say that the document is Delphic to say the least. There is no reference in it to a resumed hearing of Mr Scriven's public examination. It is not possible, as I see the matter, to glean from the face of that document what precisely was intended to happen on 29 August. We have no transcript of any of the relevant hearings in the County Court. In my judgment, and consistently with what my Lord was indicating earlier this morning, the matter wants further investigation.

…

24. In all those circumstances, and for all those reasons, as I have said, I would dismiss the appeal against the Divisional Court's refusal of habeas corpus and adjourn the appeal against the committal order.

7. We now have transcripts of the material proceedings. These shed much light on the obscurities in the limited documentation which, as can be seen, troubled this court on the last occasion.
8. On 1 March 2000 Mr Scriven was adjudged bankrupt at Stockport County Court. On 19 March 2001 he was ordered to attend Stockport County Court on 18 June 2001 for his public examination in bankruptcy. He failed to attend. The public examination was adjourned generally and a warrant was issued for his arrest.
9. The order was captioned "In Bankruptcy". It recited that it was made:

"Upon the attendance of the Official Receiver with the Official Shorthand Writer, the non attendance of the Debtor, reading the Court file and being satisfied as to service".

It was sub-captioned "In the Matter of The Insolvency Act 1986", and the final limb of the order was that:

"The matter be listed for hearing before a Circuit Judge at Stockport County Court… on 4 July 2001 at 10.00am."

10. On 2 July 2001 Mr Scriven was arrested pursuant to the county court warrant. He was put up two days later, on 4 July 2001 before His Honour Judge Caulfield at Stockport County Court and was released from custody. There had been issued by the Greater Manchester police, on the day of his arrest, the charge sheet quoted by Laws LJ. This was evidently a bona fide attempt by the police to ensure that everything was regularly done, but it was not a necessary or appropriate document. The authority for Mr Scriven's arrest was the county court's warrant, and the detention authorised by it came to an end on 4 July 2001 when Judge Caulfield discharged Mr Scriven from custody.
11. It was on the latter occasion that the county court drew up the order which Laws LJ described as "Delphic". It again carries the caption "In Bankruptcy" and the sub-caption "In the matter of The Insolvency Act 1986". It orders that "The hearing be adjourned to 29 and 30 August 2001…". It releases Mr Scriven from custody "in respect of these proceedings". It requires Mr Scriven "to attend the adjourned hearing". It makes further provision for Mr Scriven to set out in writing "all the matters which he considers to be relevant to the issues before the court", with a further note to the effect that these may or may not be relevant. It provides for service of these written submissions on the Official Receiver, and for an opportunity to the Official Receiver to reply.
12. The transcript, which we now have, of the hearing leading up to the making of this order lays to rest any possible doubt about the nature of the adjourned proceeding. It demonstrates Mr Scriven's refusal, in spite of the judge's repeated attempts to focus his mind on it, to deal with the matter before the court, namely his public examination in bankruptcy. Judge Caulfield showed endless patience in giving Mr Scriven the maximum opportunity to put whatever he conceived to be his case. When the judge, at the start, explained to Mr Scriven that the reason why he had been arrested was for breach of the order to attend for his public examination in bankruptcy, Mr Scriven replied: "May I defer my reply to that one till later?" With more tolerance than many judges would have shown, Judge Caulfield said: "Of course you may." The judge went on to explain that his task was to deal with Mr Scriven's breach of the court's order to attend, and to make arrangements for the conduct, at a future date, of the public examination.
13. Mr Scriven fastened on the police charge sheet in order to assert that he had never been served. The judge said:

"But that is not why you are here. You are here because of not attending court… on 18 June, you having indicated apparently – and that's why I asked you if it was your letter – by letter of 14 June that you didn't intend to appear, and it is that upon which I ask you to concentrate today, whatever you may seek to do about that at some other time. "

Mr Scriven in reply launched into an account of a long-running feud between him and a number of public officers in the justice system. In the course of the exchanges which followed Mr Scriven accepted that he had written on 14 June saying that he would not attend court. The judge, dealing with him in a way which in the circumstances was remarkably lenient, discharged him from custody, imposed no further penalty and made the arrangements for Mr Scriven to put his case which are recorded in the order. He acceded to Mr Scriven's submission that two days were going to be needed to canvass all the relevant matters, even though by the time the court resumed after the mid-day adjournment Mr Scriven had absented himself from the court. Before the mid-day adjournment, however, Judge Caulfield had said to Mr Scriven, in relation to the opportunity he was giving him to set out his case:

"The hearing will be adjourned on that basis".

14. There was and is not the slightest doubt that it was the examination in bankruptcy which was being adjourned from 4 July 2001 to 29 August 2001, the first of the two dates finally set by Judge Caulfield. Manifestly no further issue about committal or bail survived in relation to Mr Scriven's earlier non-appearance.
15. The hearing of the examination in bankruptcy resumed, as directed by Judge Caulfield, before Ms Recorder Hughes on 29 August 2001, with two days set aside for it. Here again the transcript which we now have sheds a flood of light on what happened. Mr Scriven appeared, assisted by Ms Rayne. Mr Ritchie, for the Official Receiver, opened the proceedings by saying: "This is the resumed hearing of Mr Scriven's public examination." Mr Scriven riposted:

"… it is not a case about my public examination, it is a case about contempt of court. I presume you have seen the order of Judge Caulfield… He made it very clear, when I was brought in front of him just over a month ago, that it was indeed about my contempt. He found there and then I wasn't in contempt and released me immediately and set down a two day hearing which you would not normally expect a two day hearing for something to do with a public examination, and certainly not in open court."

16. This exchange demonstrates what was going on. Mr Scriven was determined to deflect the examination into a spurious argument about his long-spent contempt in not attending the examination in June 2001. The Recorder politely and insistently told him that he was wrong about this. After a while she asked Mr Scriven to go into the witness box, plainly in order to be examined about his bankruptcy. Mr Scriven responded by trying to interrogate the Recorder about the European Convention on Human Rights. The Recorder told him that it was now for him to go into the witness box and answer questions. Mr Scriven responded:

"I have no intention of going into the witness box and answering any questions at this point, because if you are not prepared to recognise the most basic convention, which is a fair hearing, I am not going to subject myself, yet again after ten years of it, before judges who are totally and utterly corrupt."

The Recorder, giving Mr Scriven far more leeway than he was entitled to expect, asked him whether there were any circumstances in which he would go into the witness box and answer questions about his financial affairs. Mr Scriven replied: "When all other matters have been dealt with and moved out". The Recorder asked him whether these matters related to his concerns about the Attorney General and Her Majesty's judges. Mr Scriven replied:

"Some of them, some of them. But I am more concerned that if I find that you are acting under orders, and by "under orders" I mean under the orders of the senior judiciary and law officers in this country, then I am not prepared to accept it until you have listened, heard and accepted that they are acting unlawfully. "

17. The Recorder finally interrupted an increasingly wild tirade by Mr Scriven by asking Mr Ritchie how he wished to proceed in the face of Mr Scriven's refusal to give evidence. Mr Ritchie submitted, plainly rightly, that Mr Scriven was now in contempt of court. He invited the Recorder to adjourn the public examination in order to permit a formal application to be made to commit Mr Scriven for contempt. The Recorder agreed to this course, though not before Mr Scriven had launched a further tirade against the legal system. She gave a brief judgment:

"This is an adjourned public examination. The purpose of today was to enable Mr Scriven to be examined. Mr Scriven declines to answer questions. He makes clear to this Court that he is not prepared to follow that course of action until, to use his words, all other matters are dealt with, and by that he makes reference to the very long history of his litigation before the courts up and down this country.

I have had an opportunity of reading the three bundles which he provided for the benefit of the Court. They do deal with historic matters. They do not deal with the present matter, the question of his bankruptcy and the question of the public examination for the most part.

I have made clear to Mr Scriven that this is my Court and that I will conduct these proceedings in the way I consider to be appropriate. The way appropriate, in my view, is for Mr Scriven to go into the witness box and to answer questions raised of him by Mr Ritchie. On two occasions today he has indicated to me that he is not so prepared to comply

In those circumstances the Official Receiver, through Mr Ritchie, asks me to adjourn this public examination once more to allow a formal application to be made in respect of Mr Scriven's contempt. I am prepared to accede to that request. I have heard from both parties as to the matter. I do grant the application made by Mr Ritchie to me. Accordingly, this public examination is now further adjourned to allow a formal application to be made for Mr Scriven's contempt. That is the order of the Court. The Court will not hear about further matters today."

18. It is manifest that Mr Scriven knew perfectly well why he was before the court. When evasion failed to deflect the purpose of the proceedings he resorted to abuse. Ms Recorder Hughes, who has been the object of some offensive criticism before us, can be seen from the transcript to have handled this difficult situation calmly and to have kept the hearing on course. She deserves commendation for it, and the course which she took of adjourning the sanction for Mr Scriven's fresh contempt to a different tribunal was appropriate, so that there would be no sense in which she would be acting as judge in her own cause.
19. On Friday 5 July 2002 the Official Receiver's application for the committal of Mr Scriven to prison for contempt of court came before His Honour Judge Howarth. Mr Ritchie appeared for the Official Receiver. Mr Scriven was absent. The judge said:

"Somewhat surprisingly, Mr Scriven is not present. I have therefore not had the advantage of hearing any mitigation of any sort that he might have wished to put forward. His absence would seem to be of his own choosing and not something which he could not prevent. Mr Scriven was served with the papers, as appears from the affidavit of Mr Peter Charles Gane, on 18 June of this year. This hearing is taking place on 5 July. He has thus had several weeks' notice of the hearing.

On Wednesday 3 July at 5.25pm the court in Liverpool received a fax communication from Northern Automotive Systems Administration Limited. It appears to come from a P.A. Barnett. It says:

"Further to call yesterday, 2 July, at 5.15 approximately, from Sharon Farrell [Sharon Farrell is my clerk, who is sitting below me] re hearing at 10.30, Friday, 5 July, Mr Scriven is out of the country on business in Europe. P.A.B." "

20. Judge Howarth ran through the history of the matter, noted that there was no answer to the allegations of contempt and no mitigation, and imposed a sentence of six months' imprisonment. He noted that two years was the maximum which he could impose, and that to fine a bankrupt would not be a meaningful measure. He made it clear that the sentence was not higher than it would otherwise have been because of Mr Scriven's voluntary non-attendance.
21. An order of committal in form N79 was drawn up and issued by the county court on 5 July 2002, the date of the hearing before Judge Howarth. A warrant of committal in form N80 was drawn up initially, it appears, on 21 August 2002. It was re-issued on 4 March 2003 and again on 5 February 2004. As we have recounted, it was finally executed and Mr Scriven was arrested and imprisoned on 17 March 2004.
22. It is Mr Scriven's case, as put by Ms Rayne, that when he telephoned Stockport County Court after 11 August 2002 he was told that there was no warrant out for him. This is not deposed to, but it may well be true, since it is apparent that the warrant was not initially issued until 21 August 2002. More important, Mr Scriven asserts that the committal order was never served upon him, and that he did not see the warrant until after he was arrested. Mr Ritchie, for his part, accepts that the Official Receiver cannot demonstrate that the order was served. We approach the matter therefore on the footing that the order was not served and that the arrest took place pursuant to the warrant which was issued under authority of the order.
23. A letter had been sent by the Treasury Solicitor to Mr Scriven at Ms Rayne's address on 26 July 2002, which she passed onto him on or about 11 August and which said:

"As you are probably now aware a warrant for your arrest for contempt was issued after the hearing on 5 July. Orders were also made in the conduct of the Official Receiver's application. I enclose a copy of this order."

24. The order which was enclosed, however, was not the committal order or the warrant (which of course had not even been issued at this date). It was an order adjourning the public examination in bankruptcy and making consequential provision.
25. Order 29 of the County Court Rules, which continues to have effect under the Civil Procedure Rules, provides by rule 1(5):

"If a committal order is made, the order shall be for the issue of a warrant of committal and, unless the judge otherwise orders –

(a) a copy of the order shall be served on the person committed either before or at the time of the execution of the warrant;

(b) where the warrant has been signed by the Judge, the order for issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant."

26. This provision does not require a warrant to be signed by the Judge as a condition of its validity. It prescribes what a committal order is to contain and requires it (unless the Judge orders otherwise) to be served on the contemnor before or at the time of executing the warrant. It is only where the warrant has been signed by the Judge that the order may be served up to 36 hours after the warrant has been executed. Ms Rayne submits, nevertheless, that signature by the Judge is a condition of a valid warrant. She draws our attention to a High Court Practice Direction of 30 January 1961 captioned "Committal Orders". It reads:

"The practice of issuing the Lord Chancellor's warrant for the enforcement of a committal order made in the High Court will be discontinued. In future all such orders may be executed on the authority of a warrant signed by the Judge or one of the Judges of the court making the order."

27. This does not have the effect of introducing a requirement of judicial signature. First of all it is a practice direction, not a rule of court. Secondly, it relates to High Court committal orders. The procedure in the county court remains governed by Order 29 Rule 1(5), with the effect we have described.
28. Reliance has also been placed upon what Purchas LJ said in B v B [1991] 2 FLR 588, 597:

"What normally happens, at any rate in my experience, is that when a defendant is before the court on an application to commit him to prison for contempt, the form of warrant is prepared in advance for signature by the judge if he should conclude that the committal order is to be made. If he does he signs the warrant and the defendant is taken to prison."

This too describes practice (here, in the Family Division of the High Court) and not law.

29. In the fact situation which we have described, however, Order 29 Rule 1(5) was not complied with. The question for this court, therefore, is how to exercise its appellate powers. These reside in Section 13 of the Administration of Justice Act 1960:

" (1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of the court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.

…

(3) The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just…"

30. Decisions of this court have reiterated that, as Lord Donaldson MR said in M v P [1993] Fam. 167, 178:

"One has only to read these two subsections to appreciate that in appeals in respect of contempt, the court has a complete discretion fettered only by the need to do justice."

He went on:

"In all contempt cases, justice requires the court to take account of the interests of at least three categories of person, namely

(a) the contemnor,

(b) the "victim " of the contempt and

(c) other users of the court for whom the maintenance of the authority of the court is of supreme importance.

The interests of the alleged contemnor require that he should have the right to be informed of the charges which he has to meet, to be advised and represented if he so wishes (subject to his being eligible for legal aid or otherwise able to finance his defence), to be given a full and fair opportunity of meeting those charges and, if found guilty of contempt of court, to be informed in sufficiently clear terms of what has been found against him."

31. It is the final limb of this formulation which is in issue before us. Up to the point where he was found guilty of contempt of court and sentenced, Mr Scriven had enjoyed every latitude possible and had been in no doubt about what was happening. But it is Ms Rayne's submission that the right to be told in terms of what has been found against him is not merely a formal right: it is only on seeing the committal order that the contemnor can decide whether he should appeal against the making of the order, seek to set it aside, or comply with it and seek to purge his contempt.
32. We accept Ms Rayne's submission as to the principle behind the rule. The question for us is therefore whether, through non-compliance with the rule, the principle has been infringed.
33. Ms Rayne has relied on the decision of a two-judge Court of Appeal (Dunn and Watkins LJJ) in Beeston Shipping Limited V Babanaft International SA [1985] 1 All ER 923. This was a decision on non-compliance with the provisions in the rules for giving a judgment debtor due notice of the time and place appointed for his examination. The case was argued without reference to Section 13 of the Administration of Justice Act 1960. It was held that strict compliance was required with the rules governing service of notice. An analogy in the present case would have been a failure to notify Mr Scriven of the hearing before Ms Recorder Hughes or Judge Howarth. But the decision does not bear usefully upon the present issue. As Lord Woolf MR said in Nicholls v Nicholls [1997] 1WLR 314, 326:

"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 would be to uphold the order in the absence of any prejudice or injustice to the contemnor as a consequence of doing so."

34. The first thing that needs to be noted is that Mr Scriven, in spite of the apparent failure of service and the answer to his telephone enquiry, was by no means in the dark about what had transpired. In her witness statement made on 4 June 2003 Ms Rayne states:

"[W]e returned from France and did not hear anything about the matter for some weeks, when I was made aware that a bailiff had gone to Mr Scriven's business premises to attempt to arrest him. It was therefore clear to me that an arrest warrant had been issued for Mr Scriven…"

Further, it is evident from a letter that Mr Scriven wrote from prison that he had been shown the warrant shortly after his incarceration.

35. But what is far more important, in our judgment, is this. It is one thing for Ms Rayne to establish in principle the reasons for serving a committal order. It is another to establish in fact – as she has conspicuously not been able to do – that any of the intended purposes would have been served by formal service of the order. Nowhere does Mr Scriven, or Ms Rayne on his behalf, begin to suggest that had he had notice of the committal order he would have had grounds for appealing it or setting it aside, or that he would have taken any step whatever to purge his contempt and agree to enter the witness box. His attitude has throughout been one of contumacious defiance of the court's process in bankruptcy. Nor does Mr Scriven suggest at any point that he did not know why he was being arrested. In our judgment he knew perfectly well. He had deliberately stayed away from the committal proceedings; he must have known through Ms Rayne, long before the date of his arrest, that a warrant was out for him; and he is unable even now to suggest that it would have made any difference to his course of conduct up to the moment of arrest had the committal order been physically served upon him.
36. We have now dealt with three of the four issues of any potential materiality canvassed by Ms Rayne: the nature of the hearing on 29 August 2001; the failure to serve the committal order; and the non-signature of the warrant by a Judge. This leaves one final issue: the fact that no conduct money was tendered to Mr Scriven when he was required to attend his examination in bankruptcy. The rules have for many years provided that witnesses and judgment debtors must be offered conduct money when they are served with process requiring them to attend court. The same, however, is not true of bankrupts. The Insolvency Rules 1986, by Rule 7.41(1), spell out in terms:

"Except as directed by the court, no allowance as a witness in any examination or other proceedings before the court shall be made to the bankrupt or an officer of the insolvent company to which the proceedings relate."

37. In our judgment, therefore, there has been no failure of due process giving rise to any such injustice or unfairness as would warrant the exercise of the court's appellate power contained in section 13 of the Administration of Justice 1960. Although no formal appeal has been made against the term of imprisonment imposed on Mr Scriven, we have considered it, and have noted Ms Rayne's submission that the maximum permitted sentence for a debtor who refuses to be sworn on a judgment summons, is 14 days. However, the contempt for which Mr Scriven has been committed carries a maximum period of 2 years, and we do not find it possible to say that in the circumstances in which Judge Howarth came to deal with the matter, the term imposed by him (which by virtue of sections 11 and 23 of the Crime (Sentences) Act 1997 carries early release for good behaviour) was excessive.
38. These are the reasons for which we have dismissed Mr Scriven's appeal.