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Bempoa, R (on the application of) v London Borough of Southwark [2002] EWHC 153 (Admin) (14th February, 2002)

		Neutral Citation Number: [2002] EWHC 153 (Admin)
		Case No: CO/1673/2001

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

14 February 2002

B e f o r e :

THE HONOURABLE MR JUSTICE MUNBY
____________________

	THE QUEEN (on the application of AGNES BEMPOA)	Claimant
	- and -
	THE LONDON BOROUGH OF SOUTHWARK	Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Sylvester Carrott (instructed by Powell & Company for the Claimant)
Mr Kelvin Rutledge (instructed by the Borough Solicitor for the London Borough of Southwark)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Munby:

These are contempt proceedings brought by Ms Agnes Bempoa against the London Borough of Southwark (“Southwark”). The application is made pursuant to leave granted by Sir Oliver Popplewell on 21 November 2001. In fact, as I pointed out, such leave was not necessary, for the application arises out of the alleged breach of an undertaking given to Cresswell J in the Administrative Court on 17 October 2001: see RSC Order 52 rules 1(2)(b) and 1(3).

The background

The application arises out of judicial review proceedings, brought with permission granted by Richards J on 23 May 2001, whereby Ms Bempoa sought to challenge what she said was Southwark’s unlawful failure to assess her needs (including in particular her need for accommodation) for the purposes of considering whether or not she was eligible for assistance under section 21 of the National Assistance Act 1948. The matter came before Cresswell J on 17 October 2001 when the application for judicial review was dismissed by consent on the basis of undertakings given to the court by both Southwark and Ms Bempoa.

At that time Ms Bempoa was living in a property (“the Premises”) which belonged to Southwark. She had been let into the Premises by the tenant but accepted (see paragraph 4 of her witness statement dated 12 April 2001) that she was in unlawful occupation of the Premises. In fact Southwark had on 11 July 2001 obtained from the Lambeth County Court an order for possession of the Premises, which order would, as a matter of law, take effect against all persons (including Mr Bempoa) who might be in unlawful occupation of the Premises. The day before (10 July 2001), and in answer to Ms Bempoa’s application for an interim injunction, Southwark had given Turner J in the Administrative Court an undertaking:

“not to enforce any order for possession obtained in respect of [the Premises] until the outcome of the [Claimant’s] application for Judicial review against the Defendant is known.”

The undertakings given to Cresswell J by Southwark on 17 October 2001 were in the following terms:

“1 to conduct a further assessment of the Claimant’s needs by 8 November 2001, such assessment to be carried out in accordance with S47 of the National Health Service and Community Care Act 1990 and, to address both

(i) the claimant’s needs, if any, under s21 of the National Assistance Act 1948 and;

(ii) how such needs are to be met;

2. to notify the Claimant in writing of the outcome of the assessment within 7 days thereof;

3. to apply to restore the possession proceedings in respect of [the Premises] in the Lambeth County Court for hearing on the first open date, with a time estimate of 20 minutes;

4. not to enforce any warrant for possession of [the Premises] until undertakings (1) & (2) have been complied with or further order of this Court;

5. to continue to provide residential accommodation to the Claimant and her family in accordance with s21 of the National Assistance Act 1948 pending the aforesaid assessment and thereafter, if appropriate, for so long as it accepts a duty to do so.”

Ms Bempoa for her part gave the court a cross-undertaking:

“1 to co-operate with the [Defendant] in the conduct of its said assessment and to provide to it all or any documents or information the Defendant may reasonable require of her and which are in her power to provide; and

2. to notify the Lambeth County Court forthwith in writing that she will not oppose the making of a 14 day outright possession order in the above mentioned proceedings.”

Now it appears that, for whatever reasons, the assessment was not in fact completed until 12 November 2001 and was not signed off by the relevant social worker until 16 November 2001. Mr Sylvester Carrott, who appeared before me on behalf of Ms Bempoa, as he had previously appeared before Cresswell J and Sir Oliver Popplewell, made it clear that he was not in fact pursuing any complaint of contempt in relation to the late completion of the assessment. Mr Kelvin Rutledge, who appeared before me on behalf of Southwark, as he had previously appeared before Cresswell J, suggested that the delay might have been contributed to by some failure on Ms Bempoa’s part to comply with her cross-undertaking.

Some elementary principles

Be that as it may (and the matter has not been explored before me so I make no findings of fact) I should just emphasise one thing. As I said in In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211 at p 221D:

“The final point which requires emphasis is the fundamental principle that undertakings must be complied with. A person who has given an undertaking to the court is under a plain and unqualified obligation to comply to the letter with his undertaking. Where, as in the present case, the undertaking is to do something by a specified time, then time is of the essence. An undertaking to do something, as here, by 4 pm on Friday, is an undertaking to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday. A person who finds himself unable to comply timeously with his undertaking should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward—least of all for a solicitor to put forward—as an explanation for non-compliance with an undertaking the burden of other work. If the time allowed for compliance with an undertaking turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone who has available the time in which to do it.”

There is, as I made clear, an absolute obligation to comply with any undertaking given to the court.

At the risk of stating the obvious (but some of the evidence I have heard in this case suggests that even the obvious needs spelling out in very clear language) this obligation applies irrespective of any views which those who have given the undertaking may have as to its appropriateness. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285 at p 288 in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97 at pp 101F-102C:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. “A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it . . . It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.” (Per Lord Cottenham LC in Chuck v Cremer (1846) Cooper temp Cottenham 205, 338). Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court . . . is in contempt and may be punished by committal or attachment or otherwise.”

Southwark’s breach of its undertaking

What Mr Carrott complains of is a breach by Southwark of the fourth of the undertakings given to Cresswell J by Southwark. To that complaint there is, and can be, no defence. For the lamentable and outrageous fact is (and fact it is, because Southwark did not contend otherwise) that on 23 October 2001 Ms Bempoa was evicted from the Premises, in breach of the undertaking which had been given only six days before, and by bailiffs acting on a warrant issued by the County Court pursuant to a request from Southwark dated 14 September 2001. The eviction, it is admitted by Southwark, was attended by officials from Southwark’s Housing Department.

I am conscious that I have used strong language to describe what happened. But I make no apology for that. Any breach by anyone of any undertaking given to the court is always a matter of the utmost gravity. The matter is all the more grave when the breach is committed by a public authority and involves the eviction of someone from their home. For after only life and liberty the right to one’s home is one of the most precious of all the rights protected by our law. The integrity of the home is one of the core values of any civilised society. Rightly both the civil law and the criminal law take an exceedingly serious view of any unlawful violation of the home.

That an Englishman’s home is his castle was an aphorism of our law as long ago as the reign of the first Elizabeth: see Sendil’s case (1585) 7 Co Rep 6a. It is now almost four hundred years since the principle received its classic formulation in Semayne’s case (1604) 5 Co Rep 91a at 91b:

“The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”

As the Earl of Chatham said (see Southam v Smout [1964] 1 QB 308 at p 320):

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.”

Thus the principle in the stately prose of the seventeenth and eighteenth centuries. The principle is the same as that set out in the equally commanding language of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 provides that:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

In addition, Article 1 of Protocol No 1 protects everyone in the “peaceful enjoyment” of his or her possessions.

It was, of course, Southwark’s duty to give effect to Ms Bempoa’s rights under the Convention, for section 6(1) of the Human Rights Act 1998 provides that:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”

Now just as the principle in Semayne’s case was always qualified by the fact that there might be some justification for entry recognised by the law, so those rights guaranteed by the Convention are, of course, subject to all manner of qualifications. But none can apply in this case because of the unqualified undertaking given by Southwark. Southwark’s eviction of Ms Bempoa was at common law simply unlawful and, indeed, illegal: see Clarke v Chadburn [1985] 1 WLR 78 at p 81A-D. Moreover, and the common law apart, it is difficult to see what answer Southwark could have to the complaint that it has also acted in breach of section 6(1) of the 1998 Act and thus unlawfully in that sense also.

In these circumstances the evidence and the argument before me has centred on a crucial issue identified by Mr Carrott, namely whether this admitted breach was, as he submits, deliberate and intentional.

That issue has to be assessed in the light of certain events which are not in dispute:

i) The eviction, which took place on the morning of 23 October 2001: Ms Bempoa’s account, which has not been challenged, is that she went out to buy some groceries and on return at about mid-day found the locks had been changed. She immediately contacted her solicitor who, it is common ground, spoke on the telephone at about 12.40 pm to Ms M, the solicitor in Southwark’s legal department who had had conduct of the judicial review proceedings and who, as is also common ground, had authorised the giving of the undertaking to Cresswell J.

ii) The failure of Southwark to reinstate Ms Bempoa in the Premises: This was notwithstanding the telephone call from her solicitor in which, as the solicitor’s contemporaneous attendance note makes clear, he demanded that Ms Bempoa be allowed access back to the property. In the event Ms Bempoa was found other accommodation by Southwark’s Asylum Seekers Team.

iii) The events of 26 October 2001 when, as is common ground, Ms Bempoa was allowed back into the Premises in order to remove her belongings.

iv) Southwark’s handling of the correspondence with Ms Bempoa’s solicitors in the period following the eviction.

These events give rise to three important questions: (i) How did the eviction come about? (ii) Why did Southwark not reinstate Ms Bempoa? (iii) Is Ms Bempoa’s account of events on 26 October 2001 accurate? To these factual issues I accordingly turn.

The County Court proceedings

Before doing so I should fill in one other part of the history. Correspondence with Southwark having failed to produce results satisfactory to Ms Bempoa’s solicitors, on 30 October 2001 she applied to the County Court to be reinstated in the Premises. In her Particulars of Claim dated 30 October 2001 it was pleaded on her behalf (paragraph 7) that the undertakings given by Southwark to Cresswell J “conferred upon the Claimant the status of residential occupier inside of the meaning of section 27 of the Housing Act 1988 or alternatively constituted a contract the terms of which were specifically enforceable in law”. She relied amongst other grounds on what she alleged (paragraph 8) was Southwark’s breach of her rights under Article 8. She claimed, in addition to reinstatement (paragraph 10), aggravated and exemplary damages “on the grounds that the Defendants behaviour has been arbitrary and oppressive and that notwithstanding that they have been informed of the said breach they have unreasonably failed or refused to reinstate the Claimant”.

Her application for interlocutory relief came before His Honour Judge Behar on 31 October 2001. Having heard legal argument, the learned Judge dismissed her application on the grounds, as I understand it, that Ms Bempoa had not enjoyed the status of a “residential occupier” of the Premises as the undertakings were undertakings to the court and, as such, were not contractual. On 20 November 2001 Southwark served a Defence in the County Court which, whilst admitting the breach of undertaking, denied that Ms Bempoa had any cause of action in the County Court.

It was that rebuff in the County Court which led Ms Bempoa on 15 November 2001 to make the application to the Administrative Court which, as I have already said, came before Sir Oliver Popplewell on 21 November 2001.

The hearing

The hearing took place before me on 28 January 2002. I had evidence in the form of affidavits from Ms Bempoa (sworn on 15 November 2001 and 7 December 2001) and her solicitor, Mr Victor Jibuike (sworn on 15 November 2001, 7 December 2001 and 25 January 2002). There was a witness statement from Ms M dated 16 January 2002. Ms Bempoa did not attend the hearing. No application was made to cross-examine either Ms Bempoa or Mr Jibuike. Mr Carrott complained, in my judgment with some justification as I made clear in comments to Mr Rutledge before he called his evidence, that Southwark’s evidence was unsatisfactory in a number of respects. Ms M’s explanation for how the eviction had come about (see paragraphs [23] and [25] below) was somewhat opaque and lacking in particularity. No-one from Southwark’s’ Housing Department had seen fit to give any evidence, nor, in particular, had either of the individuals about whose conduct on 26 October 2001 Ms Bempoa had made specific complaint. Mr Rutledge, however, as was his right, and having taken instructions, elected not to cross-examine Ms Bempoa and not to call anyone other than Ms M to give evidence. She gave oral evidence and was cross-examined.

How did the eviction come about?

Southwark’s defence as set out in paragraph 6 of its Defence filed in the County Court proceedings on 20 November 2001 (and expressly relied on before me – see paragraph 24 of Ms M’s witness statement) reads as follows:

“Due to an administrative oversight the terms of the 19 October 2001 undertakings (which were principally undertakings given on behalf of the Defendant’s Social Services Department) were not communicated to its Housing Department. Furthermore, whereas the Housing Department had been aware of the 10 July 2001 undertaking they had misunderstood it to mean that no Warrant should be issued for a period of six weeks.”

Now that, if I may be permitted the use of an oxymoron, is simply legal illiteracy. As Ms M herself readily accepted in the course of her oral evidence, the undertaking was of course given by and on behalf of Southwark, not Southwark Social Services, and was binding upon Southwark in all its emanations. What, after all, is the comfort to Ms Bempoa of the dismal knowledge that she has been evicted not by Southwark Social Services but by Southwark’s Housing Department? However the very fact that this assertion can appear in so formal place as a pleading served on behalf of Southwark illuminates powerfully just how pervasive was a mind-set which, I have no doubt, contributed in no little measure to the sorry state of affairs which leads Southwark now to find itself before the court in such humiliating circumstances.

That explanation was elaborated – if only very slightly – in paragraph 10 of Ms M’s witness statement:

“Whereas I had instructions from Southwark’s Social Services Department to offer these undertakings, due to what I can only describe as an administrative oversight, the terms thereof were not communicated also to the Housing Department. Although Southwark is a unitary Authority the two Department[s] are, for administrative purposes, quite separate. I know that the Housing Department was aware of the earlier (July) undertaking but for a reason which I cannot explain, but assume was simply a misunderstanding of the nature of that undertaking, the Housing Department believed that the stay on execution was for a limited period of six weeks only.”

The poverty of that explanation is apparent: it fails to explain just why and how the terms of the undertakings were not communicated to the Housing Department.

Once Ms M had elaborated her evidence in the witness box the following facts became apparent:

i) The Housing Department wrongly believed the undertaking which had been given to Turner J on 10 July 2001 to be for a limited period of six weeks only. (This, as Mr Rutledge pointed out, is consistent with the fact that the request for a warrant was made on 14 September 2001.) How this egregious error came about I do not know. I can only assume that the Housing Department was never given a copy of Turner J’s order and that whatever oral explanation it may have been given was either erroneous or misunderstood.

ii) When she authorised the giving of the undertaking to Cresswell J on 17 October 2001 Ms M was quite unaware of two crucial matters: first, that the Housing Department was labouring under a serious misapprehension as to the effect of the undertaking given to Turner J; second, that a warrant had been requested on 14 September 2001. The cause of this lamentable state of affairs was two-fold. In the first place, as she frankly admitted, Ms M had made no enquiries at all of the Housing Department before authorising counsel to give the undertaking to Cresswell J. In the second place the Housing Department had not seen fit to keep Ms M informed of the fact that it had requested a warrant.

iii) The steps which Ms M took to communicate to the Housing Department the terms of the undertaking which had been given to Cresswell J were wholly inadequate. The only communication was in a telephone call the plainly inadequate and unsatisfactory nature of which can be gauged from two striking facts. Ms M remained wholly unaware of the Housing Department’s misunderstanding of the effect of the undertaking given to Turner J. The Housing Department, for its part, wholly failed to grasp that, whatever its previous understanding, there was now in place an undertaking which meant that it could not lawfully enforce the warrant for which it had asked.

Underlying this lamentable sequence of events, and contributing powerfully to the eventual outcome, are grave systemic failures. As Ms M’s oral evidence unfolded it became all too obvious that, astonishing as this may seem, Southwark has no systems in place to ensure what ought to be elementary: that all those departments and officers who need to know are made immediately and properly aware of the existence, terms and effect of injunctions granted against or undertakings given to the court by Southwark.

When I enquired whether Southwark has any formal written procedures regulating such matters I was shown what were said to be the relevant parts of the written guidance dated 29 June 1998 issued by Southwark Legal Services to its staff. Paragraph 2.12 refers to undertakings given by Southwark. But a study of Appendix 9, to which paragraph 2.12 directs attention, shows that this relates only to solicitor’s undertakings (a topic which has nothing to do with the present case) and not to undertakings given by Southwark itself to the court. Anxious to ensure that my understanding was correct I asked Ms M and Mr Rutledge to make further inquiries. The response was to the effect that Southwark currently has no further protocol in place for dealing with undertakings and that the written document to which I have just referred represents the extent – and, if I may be permitted to state what is obvious, the wholly inadequate extent – of its written procedures in this regard.

The inadequacy of Southwark’s procedures in this regard is, in fact, demonstrated by its own procedures in relation to solicitor’s undertakings as set out in Appendix 9. Entirely appropriately those procedures include this, under the heading ‘Recording of undertakings’:

“All undertakings given must be recorded in writing and a note placed on the front of the relevant file. A copy of this record must be placed on the central record of undertakings maintained in each section.

Once the undertaking has been complied with the record on the file should be endorsed to this effect. A copy of the endorsed record should be placed with the original record on the section’s register of undertakings.

Section Heads will check the register of undertakings on a monthly basis to ensure that they are discharged as soon as possible.”

These systemic inadequacies and the potential for disaster are all the more serious in the light of two other things I was told by Ms M. Although most housing matters fall exclusively within the remit of Southwark’s Housing Department there are some – and the present type of case is an example – which fall within the remit of both the Housing Department and the Social Services Department. The potential for inter-departmental confusion and misunderstanding that this creates is exacerbated by the fact that Southwark Legal Services is so organised that, whereas ‘housing’ cases as such are dealt with in one section (of which Ms M is not a member), housing cases which involve proceedings for judicial review are dealt with in another section (being the section where Ms M works). Now I do not in any way criticise this no doubt necessary and appropriate division of responsibilities as between different Departments and as between different sections of Southwark Legal Services. But, if I may be permitted to say so, a local authority which organises itself in such a way must have in place procedures to prevent what happened in this case, procedures which are adequate, properly understood by all relevant staff and rigorously enforced. Southwark appears, if I may say so, to fall down on every count.

Why did Southwark not reinstate Ms Bempoa?

On this topic Ms M’s witness statement was wholly silent.

In her oral evidence Ms M explained how, following the telephone call from Ms Bempoa’s solicitor (see paragraph [17] above), she had eventually managed to get through to the Housing Department. She told me (and I accept her evidence in this as in other respects as entirely truthful) that she had advised the Housing Department to reinstate Ms Bempoa. The Housing Department was very reluctant to do so. Despite her advice they chose not to. In fact, as she accepted, despite her advice they refused to reinstate Ms Bempoa. It is as simple and shocking as that.

Ms Bempoa’s solicitors did not know that at the time. They were merely left to speculate until Ms M went into the witness box. As it was, Mr Carrott’s skeleton argument hit the nail very precisely on the head when he suggested it was inconceivable that Ms M had not raised with the Housing Department the issue of the undertaking and indeed obtained instructions with regard to re-admitting Ms Bempoa.

The events of 26 October 2001

In relation to the events of 26 October 2001 Ms Bempoa gave detailed accounts both in paragraph 9 of her affidavit of 15 November 2001 and in paragraphs 6 and 7 of her affidavit of 7 December 2001. She described the Housing Department officers who were present at the Premises to allow her to remove her belongings as being “high-handed” and “arrogant”. She said they “simply did not seem to care” even though they were “fully aware of the court order and also aware that they were acting unlawfully”.

In relation to these events Ms Bempoa gave the following account in paragraph 7 of her second affidavit:

“Once inside the flat, I picked up a letter just received from my solicitors dated 19 October 2001, informing me of the undertakings given by the Defendants to this court on 17 October 2001 ... I showed the letter to [the Housing Department officers]. They read it and laughed. [Ms S] then said ‘We have no time to argue with you. You have only 10 minutes to leave. We have to get back to the office’.”

Not the least of the many unsatisfactory aspects of this case is that Southwark has chosen not to provide any evidence from either of these officers. Its only response is to be found in paragraph 19 of Ms M’s affidavit where amongst other things it is said:

“The Housing Officers … were [not] high handed or arrogant as they are well versed in handling situations of this type and at all times are sensitive to the circumstances of persons such as the Claimant … I am advised by [Ms S] that she was never shown any documents as referred to by the Claimant in paragraph 7.”

The allegations made by Ms Bempoa are very serious. If true they disclose indefensible behaviour by public servants to a vulnerable member of the community, the kind of conduct which, it might be thought, would in principle justify at least aggravated if not exemplary damages. Are they true? Or, more accurately, can I safely conclude to the criminal standard of proof necessary in proceedings for contempt that they are true? Mr Rutledge says not.

As Mr Rutledge correctly points out:

i) Ms Bempoa has not given any oral evidence before me.

ii) There are certain discrepancies in Ms Bempoa’s written evidence. There are really two points here. In the first place, the events of 26 October 2001 as described by Ms Bempoa in her two affidavits of 15 November 2001 and 7 December 2001 are not pleaded in her Particulars of Claim served on 30 October 2001. This, says Mr Rutledge, is surprising given that the Particulars contain pleaded particulars of an allegation that she had suffered distress as a result of Southwark’s acts and also contain a claim for both aggravated and exemplary damages. Secondly, the account given in paragraph 7 of her second affidavit goes further than, and adds significant details to, the account in her first affidavit.

iii) For what it is worth (and Mr Rutledge recognises that it is all hearsay) there are the denials set out in paragraph 19 of Ms M’s witness statement.

Mr Carrott for his part says that I can and should take Ms Bempoa’s evidence at face value, not least because Mr Rutledge chose not to cross-examine her. He disputes that there are any significant discrepancies in her evidence. Understandably he places considerable reliance on Southwark’s failure to produce either Ms S or her colleague to give evidence. He submits, as it seems to me with very considerable force, that the lack of evidence from anyone in the Housing Department gives rise to two alternative inferences: (i) that Southwark simply does not take the matter seriously or (ii) that relevant officials in the Housing Department are not prepared to come to court to give evidence which is simply not true.

I have considered carefully whether with the evidence in this state I can safely come to any conclusions. I have decided that in all the circumstances it is better that I make no findings on this particular aspect of the matter. In the light of the overall conclusion I have come to there is no pressing need for me to do so. If the matter needs to be investigated to a conclusion – and it may have to be if the court is ever called upon to assess any damages Ms Bempoa may be entitled to recover – it is better, I think, that findings be made by a judge who has had the opportunity, which I have not, of seeing and hearing Ms Bempoa give evidence.

The absence of an apology

Not surprisingly Ms Bempoa’s solicitors sought both an explanation and an apology from Southwark for what had happened. There is a dispute, which I am in no position to resolve, as to whether or not an explanation was proffered to the County Court on 31 October 2001. Certainly no written explanation or apology was forthcoming even at that stage. In letters dated 14 and 15 November 2001 Ms Bempoa’s solicitors made it clear that they wanted both an explanation and an apology. The only response to this was a letter from Southwark dated 19 November 2001 enclosing a copy of the Defence in the County Court proceedings which, it was said, “sets out this Authority’s explanation for the events of 23 October 2001.”

The only explanation set out in the Defence was that in paragraph 6 which I have already quoted. Neither the Defence nor the covering letter contained a word of apology. Paragraph 8 of the Defence admitted, but only “for the purposes of this claim”, that there had been a breach of the undertaking. It “denied that these were deliberate breaches and/or that [Southwark] acted in bad faith.” Paragraph 16 of the Defence set out Southwark’s contention that:

“if, which is denied, [Southwark] has acted unlawfully any damages which [Ms Bempoa] is entitled to recover as a result are minimal”.

The fact is that the first apology by Southwark is to be found as late as 16 January 2002 in paragraphs 3 and 25 of Ms M’s witness statement. In paragraph 25 she said this:

“I wish to repeat that Southwark is very sorry for what happened on 23 October 2001. However, I would respectfully ask the Court to accept that it was the product of a genuine mistake and that there was no deliberate attempt to breach the terms of the undertaking. When the matter was reported to me I did my best to arrange other suitable accommodation which, fortunately, was provided later the same day.”

A full explanation was not forthcoming until Ms M gave oral evidence in the witness box on 28 January 2002.

Conclusions

Mr Carrott, as I have said, submits that Southwark’s admitted contempt was deliberate and intentional. Mr Rutledge says that the contempt was neither wilful nor deliberate. It was, says Southwark in paragraph 6 of its Defence in the County Court proceedings, the result of “an administrative oversight”, or, as Mr Rutledge put it, the product of confusion and misunderstanding.

As so often the truth lies somewhere between the polarised positions generated by the understandable pressures of the forensic process. I am satisfied that the initial contempt – the unlawful eviction of Ms Bempoa from the Premises – was neither wilful nor malicious. I am, on the other hand, satisfied – by which I mean satisfied to the criminal standard of proof beyond reasonable doubt – that it was the result of something much worse and much more blameworthy than mere “administrative oversight”. It was the product of a system so obviously defective, and of an approach to the court’s orders so slipshod and lackadaisical, as in my judgment to constitute heedless indifference and recklessness.

Southwark’s failure to reinstate Ms Bempoa was something worse. It was, I am satisfied, having heard Ms M’s evidence, the result of a deliberate decision taken by the Housing Department (a) in full knowledge of the fact that Ms Bempoa’s eviction was a breach of Southwark’s undertaking, and thus a contempt of court, and (b) in the teeth of legal advice from Ms M that Ms Bempoa should be reinstated. Southwark’s conduct at this point was as deplorable as it was inhumane.

Having thus deliberately and with eyes wide open refused to take the obvious step to mitigate its breach by reinstating Ms Bempoa, Southwark then aggravated the matter by the attitude it chose to adopt to her solicitor’s more than justified complaints. Proper explanations – by which I mean full and frank explanations - were not given. No apology of any kind was proffered, as I have said, until January 2002. Even leaving wholly out of account, as I do, the events of 26 October 2001, whatever they were, it is hardly surprising that Ms Bempoa should have been left feeling, as she does, that Southwark simply did not take the matter seriously, that it simply did not care how it had treated her.

Penalty

Mr Carrott made it clear at the outset that he was not seeking the imposition of any penalty on any individual and that he was seeking no more than a financial penalty – a fine – for Southwark.

Mr Rutledge put forward a number of matters in mitigation. I should set them out as he explained them to me:

i) Ms Bempoa was not the residential occupier of the Premises, her only right of occupation being by virtue of the undertaking. The contempt was low in the scale of gravity given the precarious nature of her occupation.

ii) The undertaking apart, the eviction itself was conducted lawfully by a court bailiff, so there was no breach of the provisions of the Protection from Eviction Act 1977.

iii) Ms Bempoa’s initial response to the eviction had been to sue in the County Court rather than to refer the matter back to the High Court.

iv) Southwark is now facing a claim for damages (including punitive damages) in respect of the eviction.

v) Upon being notified of the eviction Southwark did everything it reasonably could to obtain further accommodation for Ms Bempoa, who was in fact provided with other accommodation the same day.

vi) Arrangements were made for Ms Bempoa to collect her personal belongings from the Premises.

I have to say that I do not find any of this particularly compelling. Points (i), (ii), (v) and (vi) seem to me rather to minimise the gravity of something which is bad enough even if there are no aggravating features. With all respect to Mr Rutledge I do not see where point (iii) gets him, and point (iv) might be rather more compelling were it not for the fact that, as I understand it, Southwark flatly denies Ms Bempoa has any legal basis for claiming damages at all. Point (v) needs to be taken in the light of what I have said in paragraphs [32] and [47] above.

Mr Rutledge was perhaps on somewhat better ground in submitting that the greater punishment for Southwark would be what he called public humiliation rather than the exaction of some financial penalty which in the final analysis could only be to the financial disadvantage of the inhabitants of the Borough, and those who rely upon Southwark for the services it provides, without providing any corresponding financial benefit for Ms Bempoa. The implication, that money extracted from Southwark’s coffers is better put in Ms Bempoa’s pocket than into some other public purse, I can readily understand. I have to say it rings somewhat hollow given Southwark’s denial that she has any claim for damages at all.

Not without misgivings I have concluded that on this occasion the gravity of Southwark’s contempt can be adequately marked by the delivery of this judgment in public. Its contents shame Southwark. That public shame – what Mr Rutledge rightly called Southwark’s public humiliation – is, on this occasion, punishment enough. The public interest, in my judgment, is better served by the public being told exactly what Southwark – what its representatives – have done to Ms Bempoa, in the public seeing just how badly its representatives have treated Ms Bempoa, than in my imposing a financial penalty which in the final analysis will punish not those responsible for Ms Bempoa’s treatment but rather those whose servants they are. I have decided, therefore, not to impose any penalty.

Damages

As I have already mentioned, Ms Bempoa is pursuing a claim for damages in the County Court proceedings. Southwark denies that she can recover any damages in those proceedings and indeed sets up in paragraph 12 of its Defence Judge Behar’s ruling as a bar to further litigation on that particular point.

Now I have heard no argument on any of that – the point is not, of course, before me – and I say nothing more about it. But there is another aspect of the matter which does concern the proceedings before me, namely whether Ms Bempoa may possibly have some claim to damages, justiciable in the Administrative Court, for Southwark’s breach of the undertaking.

Whether there is any cause of action for damages at common law for contempt of court may perhaps be doubted, though I must emphasise that I have heard no argument and accordingly express no view on the point: see the discussion in Arlidge, Eady & Smith on Contempt (ed 2) at paras 14-117–14-133 of Chapman v Honig [1963] 2 QB 502. But there are authorities showing that in certain circumstances damages can be recoverable for breach of an undertaking: see Midland Marts Ltd v Hobday [1989] 1 WLR 1143 and Parker (t/a NBC Services) v Rasalingham (t/a Microtec) [2000] All ER (D) 912, (2000) Times July 12. Moreover, and quite apart from that, it would seem in principle there might in an appropriate case be a right to claim damages in accordance with sections 7 and 8 of the 1998 Act for breach of section 6(1) of the Act.

Now as I have said I have heard no argument on the point. I mention it only because it seems to me that, if invited to do so, I should give Ms Bempoa liberty, if so advised, to apply to this court for financial relief. I wish to make it absolutely clear that I am expressing no views, one way or the other, as to whether she has any such remedy or as to whether it is open to her to pursue such a remedy in this court if she is also pursuing in another court a different claim for financial relief arising out of the same events. It is simply that if she wishes to keep this option open it would, I think, be right to allow her to do so.

Looking to the future

I would hope that Southwark will now take urgent steps to remedy those systemic defects to which I have drawn attention. It is not for me to tell Southwark what to do. My comments in paragraph [27] above indicate the objectives that a properly organised system must be designed to achieve. The extracts from Appendix 9 which I have set out in paragraph [29] above illustrate the kind of specific measures which perhaps need to be implemented. The structural arrangements identified in paragraph [30] are, I imagine, a ‘given’ which any new system must be designed to accommodate if events such as I have had to investigate are to be avoided in future.

One final point

Mr Rutledge quite properly drew my attention to what he said was a technical defect in the contempt proceedings. He submitted that contrary to the mandatory requirements of RSC PD 52 / CCR PD 29, Part I, para 2.6(v), the application did not contain a “prominent notice” of the possible consequences of the respondent not attending the hearing.

Now there are, as it seems to me, two very simple answers to this point. In the first place, the Practice Direction, as para 1.1 makes clear, applies only to applications for the committal of a person to prison. Whatever the application may have said Mr Carrott made it clear from the outset that he was not seeking anyone’s committal. Moreover, para 10 of the Practice Direction, as Mr Rutledge accepted, authorises the court to waive any procedural defect in the commencement or conduct of such an application “if satisfied that no injustice has been caused to the respondent by the defect.” Without wishing in any way to water down the imperative requirement for the strictest compliance with the rules in all matters of contempt, I have to say that this would have been the plainest possible case for a waiver of this particular defect. Southwark did attend and proceeded to defend the proceedings. It put in such evidence as it chose to rely upon. Mr Rutledge sought no adjournment. He was content then and there to defend the application on the merits. I need say no more.

A footnote

The reader will notice that I have referred to Ms M and Ms S anonymously. I have done so deliberately.

Ms S was not in court to defend herself. I do not know whether that was her decision or the decision of others. I have made no findings in relation to her role in events. It would not in the circumstances be right publicly to name her.

Ms M, of course, stands in rather a different position. She did appear in court. In certain respects, I am bound to say, she is to be criticised. On the other hand, there are individuals in the Housing Department, whose names I do not know, who, if Ms M is to be publicly named, probably deserve also to be named. And, back of all that, there is, as I have pointed out, serious systemic failure, for which the responsibility lies at a more senior level. Ms M is not free from all blame and responsibility but it would be a grave injustice if she alone of all those involved were to be publicly identified. She should not be made the scapegoat for the collective failings of Southwark and its officials. And she, in contrast to others, has already suffered by having to appear in court. She should be spared further public embarrassment.

Costs

At the end of the hearing I was addressed briefly on the question of costs. Two questions were canvassed: Should I order Southwark to pay Ms Bempoa’s costs, and if so, whether on the standard or on an indemnity basis? Should there be excluded from any order for costs in Ms Bempoa’s favour the costs inappropriately, as Mr Rutledge would have it unnecessarily, incurred obtaining leave from Sir Oliver Popplewell?

Either party can if they wish address me further on these questions. But subject to any further submissions I propose to order Southwark to pay Ms Bempoa’s costs of the proceedings in the Administrative Court since Cresswell J’s order was made on 17 October 2001. Those costs will be assessed on the indemnity basis and without any special order being made in relation to the costs of the application to Sir Oliver Popplewell. Given my findings this would seem to be, in principle, the plainest possible case for an award of indemnity costs. And I can see no good reason why Southwark should now be enabled to take advantage of a point in relation to the hearing before Sir Oliver Popplewell which had entirely passed it by and of which it would have remained blissfully ignorant had I not brought the matter up myself.

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MR JUSTICE MUNBY: These were contempt proceedings brought against the London Borough of Southwark arising out of the fact that, as Southwark admitted, it had unlawfully evicted the claimant from her home in breach of an undertaken which it, Southwark, had given to this court only six days beforehand.

Having heard evidence on the matter, I concluded that although the unlawful eviction of the claimant from her home by Southwark was neither wilful nor malicious, it was the result of something much more worse and much more blameworthy than mere administrative oversight. It was indeed the product of a system so obviously defective, and of an approach to the court's order so slipshod and lackadaisical, as in my judgment to constitute heedless indifference and recklessness. Following that unlawful eviction Southwark failed and, as I found, refused to reinstate the claimant.

In relation to that I found that the failure to reinstate the claimant was the result of a deliberate decision taken by the housing department of Southwark (a) in full knowledge of the fact that the claimant's eviction was a breach of Southwark's undertaken and thus a contempt of court, and (b) in the teeth of legal advice from its own legal department that the claimant should be reinstated. I concluded that in that respect Southwark's conduct was as deplorable as it was inhumane.

I found, finally, that having thus deliberately, with eyes wide open, refused to take the obvious step to mitigate its breach by reinstating the claimant, Southwark then aggravated the matter by the attitude it chose to adopt to her more than justified complaints. Full and frank explanations were not given. No apology of any kind was offered until a matter of days before the hearing in front of me. I concluded that it was hardly surprising that the claimant should have been left feeling, as she does, that Southwark simply did not take the matter seriously, and that it simply did not care how it had treated her.

In the circumstances, the question before me was: what, if any, penalty should be imposed upon the London Borough of Southwark for that contempt of court? I concluded, not without misgivings, that on this occasion the gravity of Southwark's contempt can be adequately marked by the delivery of this judgment in public. I say, in my judgment, that the contents of the judgment shame Southwark. That public shame, which Southwark's Council rightly called Southwark's public humiliation, is on this occasion, in my judgment, punishment enough. The public interest is better served in my judgment by the public being told exactly what Southwark or its representatives have done to the claimant, in the public seeing just how badly its representatives have treated the claimant, than in my imposing a financial penalty on the authority which, in the final analysis, will punish not those responsible for the claimant's treatment but rather those who servants they are. Accordingly, I have concluded that I need not impose any penalty.

The judgment, of which copies will be available in a moment or two, was sent to the parties in draft, indicating the form of order which I was minded to make in the absence of any appearance by the parties. I indicated that there was no need for the parties to appear in front of me, unless they wished to argue the matter further. Nobody is present in court and, as I understand, the case having been called on by the usher outside court, there is nobody who wishes to attend today. In the circumstances, the order I make is this: (1) that the London Borough of Southwark should pay the claimant's costs on an indemnity basis, that is to say her costs, and the whole of her costs, since the order made by Cresswell J in this court on 17th October 2001, being the order which contained the relevant undertaking and whose breach has led to these proceedings. (2) I give the claimant liberty, if so advised, to apply to this court for financial relief arising out of Southwark's contempt. Otherwise, for the reasons set out in this judgment, I do not propose to make any further order or to exact any penalty, financial or otherwise, from Southwark.

As I say, copies of the judgment are available for anybody who may wish to have one. There are no reporting restrictions of any sort, although anybody who chooses to read the judgment will see that two persons involved in the case are referred to in the judgment, in the one case, as "Miss M" and, in the other case, as "Miss S". The reasons why I have done that are set out in paragraphs 61 to 63 of the judgment. But there are, as I say, no reporting restrictions, and anybody who wishes to do so is free to make such use and quote the whole or any part of the judgment in the form in which I now hand it down.

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