ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CHRISTOPHER CLARKE J)
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LADY JUSTICE HALLETT
LORD JUSTICE TOULSON
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Mr Gavin Kealey QC and Mr Colin West (instructed by Simmons & Simmons LLP) for the Respondent
Hearing dates : 12 July 2011
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory framework
"Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt) … "
"(1) Rules of court may provide that any right of appeal to –
(c) the Court of Appeal,
may be exercised only with permission
(2) This section does not apply to a right of appeal in a criminal cause or matter."
"An appellant or respondent requires permission to appeal –
(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against –
(i) a committal order;
(ii) a refusal to grant habeas corpus; or
(iii) a secure accommodation order made under section 25 of the Children Act 1989; or
(b) as provided by Practice Direction 52.
(Other enactments may provide that permission is required for particular appeals)."
Before this Court, Mr Brindle made it clear that he was contending for an expansive construction of "committal order" in CPR52.3(1)(a)(i) – neither more nor less.
(1) The RSC point
"Nothing in the foregoing provisions of this order shall be taken as affecting the power of the court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of an enactment in like manner as if he had been guilty of contempt of the High Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an order of committal."
"… the applicant decided not to proceed with the motion to commit in the sense of seeking any punitive relief in the form of committal or fine."
However, it seems to me that that was no more than a passing observation in an ex tempore judgment which was solely concerned with costs in relation to an application which was no longer pursued. It was made before the CPR came into force and, in my view, does not assist in the construction of CPR52.3(1)(a). I am satisfied that RSC 052.r9 does not represent an expansive meaning of "committal". It merely acknowledges, at a convenient place, the continuing availability of financial penalties and prescribes the requisite procedure.
(2) The authorities
"Permission to appeal will not be required where the appeal is against a committal order, a refusal of habeas corpus or a secure accommodation order made under section 25 of the Children Act 1989, CPR52.3(1)(a). In these cases, where the liberty of the subject is in issue, appeal lies as of right."
Tanfern itself was not a contempt case.
"The natural meaning of the expression 'committal order' is an order which commits a party to prison. That that is its true meaning in the context of CPR52.3(1)(a) is in my judgment confirmed when one looks at the other two exceptions to the requirement of permission to appeal, namely a refusal to grant habeas corpus and a secure accommodation order, both such orders being ones which affect personal liberty. [This] order is manifestly not a committal order in that that sense of the expression. On the contrary, it expressly records that no order is made on the claimant's application. Nor can I see any basis for saying that s13 of the 1960 Act somehow limits the effect of s54 of the 1999 Act on the operation of r52.3 of the Civil Procedure Rules. It follows, in my judgment, that permission to appeal is required."
Laws LJ expressed his "entire agreement". He also expressed the provisional view (at paragraph 34) that, even where a contemnor has been committed to prison, only he and not the applicant has an appeal as of right.
"It is therefore clear that for the purposes of the CPR appellate regime a distinction has to be drawn between an order by which a party is committed to prison (for which permission to appeal is not required) and any other order or decision made by a court in the exercise of jurisdiction to punish for contempt. Such orders come within the ambit of section 13 of the 1960 Act, whether they consist of 'no order save as to costs', as in the Davenport case, or an order for the adjournment of the whole or part of the application, as in the present case."
Brooke LJ later acknowledged (at paragraph 31) that "it is not possible to legislate in advance of every type of situation" but hoped that "the general principles will now be clear".
"There is no doubt that a suspended committal order is an order which commits a person to prison."
That much is plain and obvious in the analogous situation of a suspended sentence of imprisonment following conviction in a criminal court. However, the judgment is significant for its consideration of the origin of CPR52.3(1). Hale LJ said:
"On the other hand, [a suspended committal order] does not result in the immediate imprisonment of the person concerned. A further order of the court is required. Unlike an immediate committal order, the refusal of habeas corpus, or a secure accommodation order, the person concerned is not immediately deprived of his liberty. It could be said, therefore, that the policy of the exception does not require an automatic right of appeal without the delay involved in having first to seek the permission either of the trial judge or the appeal judge. The origin of CPR52.3(1) lies in the Report of Sir Jeffrey Bowman, Review of the Court of Appeal (Civil Division) (September 1997). This recommended that the requirement of leave to appeal be extended to all appeals apart from those which 'fundamentally affect the legal position of minors or the liberty of the subject' (para 23)"
In fact, the general recommendation about minors was later dropped.
"Although a suspended committal order does not immediately deprive the contemnor of his liberty …, it hangs a sword of Damocles over his head which puts his liberty at much greater risk than did the order which he has been found to have breached. To the extent that there is any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty is thus put in jeopardy. In our judgment, therefore, a suspended committal order is a committal order for the purpose of CPR52.3(1)(a) and may be appealed without permission."
"Although not directly relevant to our conclusion, we do not understand why the appellant required permission to appeal. This is a committal order and permission is not required, see CPR 52.3(1)(a)(i)."
(3) The anomaly
Lady Justice Hallett:
Lord Justice Toulson: