England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 October 2009

Mr Justice COLLINS :

1. I was asked by counsel for the claimant in this case to direct that a penal notice in accordance with R.S.C. 0.45 Rule 7(4) be endorsed on the Order I was making against the defendant. I decided, whether or not the Rule applied, that such a notice was unnecessary, but I indicated that I would consider, having received written observations on the point, whether in general such a notice was needed in order to enable the court to deal with failures to comply with its orders under R.S.C. Order 52 by means of proceedings for contempt or for sequestration.
2. It is not and has never been the practice of the Crown Office or of the Administrative Court to include a penal notice in its orders, whether in the form of injunctions or mandatory or prohibitory orders. Prior to the extension of the powers of the court in the Supreme Court Act 1981 and the revised R.S.C. Order 53, following the decision of the House of Lords in O'Reilly v Machman [1983] 2 AC 237, because it was not possible to obtain injunctive relief against the Crown and judicial review was limited to the obtaining of one or other of the prerogative orders, it was not unusual to seek relief against public bodies other than the Crown by ordinary actions for injunctions or declarations. That now is not possible, at least in circumstances where a public body's decision is sought to be overturned or it is to be compelled to take action in its public capacity. There are, of course, claims that are purely private law claims (for example, claims in tort or for breaches of contractual obligations) which may fall within R.S.C. 0.45, but I am concerned only with orders made by the Administrative Court.
3. R.S.C. 0.45.5(1) provides:-

"Where –

(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time ….; or

(b) a person disobeys a judgment or order requiring him to abstain from doing an act …"

the judgment or order may be enforced by inter alia committal of an individual or, where the order is directed at a body corporate, of a director or other officer or sequestration of its assets. A fine is an alternative to committal. 0.45.7(2) and (3) require personal service of the relevant order on an individual or, if the person subject to it is a body corporate, on the officer against whom any committal may be sought.

0.45.7(4) provides:-

"There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible."

4. While 'body corporate' is not defined, it is clear that the expression is not limited to companies. Thus CPR 39.6 states that 'a company or other corporation may be represented at trial by an employee' subject to certain conditions. Corporations may be aggregate or sole. An example given of a corporation aggregate is a local authority and it is to be noted that some Secretaries of State are corporations sole. While the latter are also individuals who are named as defendants by virtue of their office, they may have personal involvement in ensuring obedience to the courts' order. Thus prima facie a local authority and I suspect any defendant against whom an order to take or to abstain from taking any action is made by the Administrative Court is covered by the language of R.S.C. 0.45 r7.
5. So far as I am aware, the point has never been taken by a defendant against whom contempt proceedings have been taken that the order was defective. Admittedly, it is very rare for orders not to be obeyed and (subject to one very recent case involving a Chief Constable) it is unknown for there to be a refusal to obey. It is only if administrative incompetence creates a failure to obey an order that problems can arise and it has been known for the court to summon those who are responsible to show cause why action should not be taken against them. Certainly orders for costs have been made against public bodies who have failed through poor management to obey, but such orders are not dependent on the existence of a penal notice.
6. M v Home Office [1994] 1 AC 377 concerned an application to commit the then Home Secretary (Mr Kenneth Baker, MP) for contempt where an asylum seeker had been returned in breach of an undertaking and had then not been returned to this country in breach of an interim injunction. There was much argument in that case about whether the court had power to grant an interim injunction against a Minister on the basis that it was an order against the Crown. R.S.C. 0.77 r1 dealt with orders against the Crown and defined them as orders made 'in any civil proceedings … against the Crown or in any proceedings on the Crown side of the Queen's Bench Division … in favour of any person against the Crown or against a government department or against an officer of the Crown as such'. 0.77 r15(1) read:-

"Nothing in Orders 45 to 52 shall apply in respect of any order against the Crown."

0.52 dealt with committal for contempt.

7. R.S.C. 0.77 has been replaced by CPR 66. 66.6(1)(b) disapplies R.S.C. Orders 45 to 47 and 52 in relation to any order against the Crown. 66.2 defines 'order against the Crown' to mean an order 'against the Crown, a government department or an officer of the Crown as such made … (b) in proceedings in the Administrative Court'. The list of Authorised Government Departments published in pursuance of s.17 of the Crown proceedings Act 1947 extends beyond what I suspect most would consider as obvious government departments to include, for example, the law enforcement agencies (Crown Prosecution Service, Serious Fraud Office, Assets Recovery Agency). The list is set out at page 1801 of Volume 1 of the 2009 White Book.
8. It follows that no penal notice is necessary in orders against any such Government Department or Officer of the Crown within any such department (usually a Secretary of State or minister). Nevertheless, as M v Home Office made clear, a finding of contempt could be made if there was a failure to obey an order against the Crown.

At p. 424H in M, Lord Woolf said:-

"While contempt proceedings … against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of the contempt."

9. The distinction is there drawn between the ability to make a finding of contempt, which will lead to no punitive sanction save for payment of costs, and the ability to punish for contempt as a means of enforcement. It is the latter which would be covered by R.S.C. 0.45. Thus it is only if it is considered that it should be possible to use the powers available to punish for contempt that a penal notice might be needed. The question is whether such a notice is indeed necessary to enable such powers to be used.
10. If confirmation is needed that a local authority is a body corporate within the meaning of the Rules, it is provided by the decision of Sedley J in R v Wandsworth County Court ex p. Munn (1994) H.L.R. 697. That case concerned the equivalent County Court Rule, but there is no difference in the language used and it would be extraordinary if there were any difference between the County and the High Court. My attention was drawn to R(Bempoa) v London Borough of Southwark [2002] EWHC 153 Admin, a decision of Munby J. That case concerned the failure of the Council to comply with an undertaking given to the Administrative Court and so 0.45 was not involved. In Paragraphs 52 and 53, Munby J decided, in the light of conduct which he regarded as lamentable and outrageous and a grave contempt, that:-

"the public interest … 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."

11. Lord Woolf in M made much the same point at p.425D, stating that the courts' ability to make a finding of contempt was of great importance and should suffice since it would demonstrate that a government department had interfered with the administration of justice. The same in my view applies to any public body.
12. Accordingly, I do not think that a penal notice is necessary in orders made against a public body. A failure to comply with an order can be dealt with by an application to the court for a finding of contempt and, if necessary, a further mandatory order which may contain an indication of what might happen should there be any further failure to comply. Adverse findings coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.
13. As has been apparent, I have been considering orders made by the court against public bodies. It may be that, usually at an interlocutory stage, orders may be made against private individuals or corporations. Such orders may need a penal notice, but I do not think that that should routinely be done. If there is reason to think that such a notice is required the party obtaining the order can request the judge to direct that it is included.
14. It follows that I see no reason for the Administrative Court to change its present practice and, subject to what I have said in the preceding paragraph, penal notices are not necessary.