England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
SITTING AT LEEDS
BUSINESS AND PROPERTY COURTS

		Combined Court Centre The Courthouse 1 Oxford Row Leeds LS1 3BG
		4 July 2018

MR JUSTICE BARLING:

Introduction

1. This is the rolled-up hearing of Miss Mary Carrick's proposed appeal against the decision of HHJ Richardson (following her judgment on 24 November 2017) to re-issue an extended civil restraint order made against the appellant on 7 June 2017. The decision appealed against was to re-issue the order with a penal notice in the familiar form. The hearing is pursuant to the order of Males J on 5 April 2018, when he directed that the appellant's application for permission to appeal this point should be heard by a High Court Judge with the hearing of the appeal, subject to permission being granted, to follow immediately.
2. The appellant's notice relating to the appeal also includes an application by the appellant for an order that the charging order absolute of 20 July 2001, made in the High Court in renumbered claim KH190052, should be set aside on the ground that Kingston upon Hull City Council was never substituted as defendant in claim KH603193 in place of the former Humberside County Council. That additional application was not mentioned in the order of Males J pursuant to which this matter is before me today. I will deal with it at the end of this judgment.

Background

3. I deal first with the question of the imposition of a penal notice on a re-issued extended civil restraint order. There is a very long history to this matter. Miss Carrick was first made the subject of an extended civil restraint order by the Court of Appeal on 23 January 2015. That order dealt with the same matter as the order which is the subject of this appeal. I note that the extended civil restraint order made by the Court of Appeal on the standard form included a penal notice in the usual form.
4. However, the history did not begin in 2015, but goes back to March 1996, when the underlying proceedings were issued by the appellant against Humberside County Council (as it then was) in respect of a claim for personal injuries sustained during the course the appellant's employment. The claim was dismissed in 1999 and a costs order was made against the appellant. Further proceedings were issued by the appellant in 1999 relating to other matters arising out of her employment. Ultimately, in 2000, the appellant was ordered to pay costs of about £49,000 in respect of the unsuccessful personal injury claim. That costs order led to an absolute charging order against the appellant's home in July 2001.
5. In the 17 or so years since that absolute charging order, countless applications have been made by the appellant, including many applications to set aside the charging order. In respect of one such application the Court of Appeal said that the matter was totally without merit and, in view of the history of the appellant's applications, made the extended civil restraint order to which I have referred. That order expired in January 2017.
6. On 18 June 2017, HHJ Richardson, sitting at the County Court at Kingston upon Hull, on the application of Kingston upon Hull City Council, made a further extended civil restraint order pursuant to s.3 of PD3C of the Civil Procedure Rules. The Court made that order for two years, and so it will expire at midnight on 17 June 2019. It is in terms not dissimilar to the order made by the Court of Appeal and it relates to the same proceedings. It prevents the appellant from issuing any claims or making any applications in the County Court concerning any matter involving or relating to or touching on or leading to the proceedings which are, effectively, the underlying personal injury claim brought in 1996. HHJ Richardson was the designated judge for dealing with any applications brought by the appellant that are covered by that order.
7. When the matter came back before HHJ Richardson in November 2017, in paragraph 9 of her judgment she said this:

"It will be apparent from that update to the chronology that, since the extended civil restraint order was made in June of this year, I, as the Designated Civil Judge, have, on a monthly basis, had to deal with applications, whether in an application notice form or letter, from Miss Carrick. An objective bystander might take the view that that is a rather remarkable turn of events, given the nature of the extended civil restraint order and the judgment of the court handed down in June of this year. It is against this background, and no doubt borne out of exasperation, that Hull City Council has issued its present application."

8. The "present application" was an application for a general civil restraint order to be made against the appellant. However, in her judgment, the learned judge explained why she did not consider that the court had jurisdiction, in the circumstances, to make a general order. As an alternative -- whether this came of the judge's own initiative or was based on an alternative submission of the respondent is not clear -- the judge considered whether the order she had made in June 2017 should carry a penal notice. The appellant argued that it should not. She said that it would be very frightening from her point of view and unjustified. In considering whether to impose on the order a warning of this kind, in paragraph 23 of her judgment, the judge said:

'Should the court apply a penal notice in this case? Miss Carrick does have a history of sending letters rather than application notices. It will be abundantly clear to her now that that can no longer continue, as letters will be put, unopened, in a box. Miss Carrick, no doubt, will say, "Well, adding a penal notice is not going to stop me issuing applications that I am entitled to issue under Practice Direction 3C", and she is absolutely right. If she issues applications that comply with the practice direction, she is entitled to issue those applications, whatever the merits of those applications may be, and they will be considered by me. Against that, I balance the fact that Miss Carrick does have a long history, firstly, of issuing applications that are not necessarily compliant with the practice direction, and in fact the very first application that I dealt with when I arrived in Hull in January was one such application, and if she is to issue applications and to tie up valuable court resources and the time of Hull City Council and those in the legal department, she should get it right.'

9. The judge then said that the matter was finely balanced, but she decided that it was appropriate to add a penal notice to the existing civil restraint order, warning the appellant that she must comply with the terms of the order and that, if she did not, she may be in contempt of court and may be liable to imprisonment. She said that this was because Miss Carrick had a history of not complying with the Practice Direction. She herself had indicated that the addition of a penal notice might be a deterrent to her. Therefore, the judge added the notice.
10. As I have already indicated, the appellant objects to the notice. Males J, in his order, recognised that there may be an issue as to the court's power to impose a penal notice on such an order.

Does the court have power to affix a penal notice to a CRO?

11. As far as Ms Souter for the respondent is aware, and indeed as far as I am aware, no authority exists on the question of whether such a penal notice can be imposed on a civil restraint order of this kind. As a matter of logic, if there is no power to commit for contempt of court for breach of an order of this kind, then no such warning would be appropriate. However, by the same token, if there is a power to commit for contempt for disobedience to such an order, then there is no obvious reason why a penal notice may not be imposed in a suitable case. So, the first question is whether there can be a committal for contempt.
12. The point that Males J thought was arguable was that both CPR3.11 and CPR PD3C contain detailed provisions for the consequences of a failure to comply with an extended civil restraint order. Yet, in referring to those consequences, the provisions make no express reference to committal to prison for contempt of court.
13. As against that, CPR Part 81.1(3), which sets out the procedure for contempts of court and other disciplinary provisions, including those contained in the County Courts Act 1984, states:

"Unless otherwise stated, this Part applies to procedure in the Court of Appeal, the High Court and county courts."

CPR 81.4 provides:

"(1) If a person -

…

(b) disobeys a judgment or order not to do an act,

then, subject to [various provisions which do not currently apply] the judgment or order may be enforced by an order for committal."

14. Ms Souter submits -- and this appears to be correct -- that, subject to certain exceptions, the CPR applies to all proceedings in county courts, the High Court and the Civil Division of the Court of Appeal. Therefore, the rules in Part 81 apply to all levels of court, subject to specific exceptions which do not appear to be relevant in the current case.
15. The object of the contempt jurisdiction is to enforce compliance with judgments and orders, whether interim or final, procedural or substantive, as CPR 81.4(1) states. It is, of course, very common for orders to have a prefix of a penal notice of this kind. It is specifically applied to orders, usually at the request of the party who seeks the order, where there is a perceived or special risk that the person to whom the order is directed will fail to comply. The obvious example is the very common freezing order, made where there is a risk of a defendant disobeying the order by dissipating assets which would otherwise be available to satisfy a judgment. But there are many other cases in which it is common for a penal notice to be affixed to an order. As I have already commented, the civil restraint order of the Court of Appeal in this case included a penal notice.
16. As far as counsel has been able to ascertain from her researches, there is nothing in the CPR or in the authorities which indicates that there is no power to commit for contempt of court for breach of civil restraint orders, and in particular extended civil restraint orders. Of course, as Males J indicated, if there is a power to commit for contempt for breach of such an order, it would be a relatively unusual case where such an application was made and, certainly, where was acceded to. But that is not really the point.
17. In the absence of any clear exclusion within the CPR or any authority on the point, I must approach the question as a matter of principle. In my view, there is no good reason why the normal consequences of disobeying any order of the court – viz. that if the breach is established to the criminal standard of proof, the court is able to consider whether the case is an appropriate one in which to commit for contempt and to impose a penalty, whether by imprisonment, a fine or seizure of assets - should not apply. As I have said, it would be an unusual case where such an application was made or granted, but I can see no good reason why the order should be treated any differently from other orders of the court. The mere fact that specific sanctions for breach of civil restraint orders are spelt out in the CPR and in the practice direction does not, in my view, in the absence of any special words, exclude that possibility.
18. I would, therefore, hold that the jurisdiction to commit for contempt in these circumstances exists. Accordingly, it is within the power of a county court, the High Court, and indeed the Court of Appeal, to affix the appropriate warning to a civil restraint order. In fact, it is not just the extended civil restraint order that has the warning in the current version of the form. The warning is included in Forms N19, N19A and N19B, which are the forms for all three kinds of civil restraint order.

Was the Judge entitled to affix a penal notice in the present case?

19. The next question is whether the judge was wrong to impose the warning in the present case. Given that there is jurisdiction to commit for contempt, and given that the warning simply recites that fact, an appeal court should be very slow to find that the warning ought not have been included in a particular case. Whether to include it or not is clearly a matter on which the lower court has a very wide discretion.
20. In the present case one bears in mind that the judge was, and had been for a long period, the judge designated to deal with applications made by the appellant which are covered by the civil restraint order in question. Therefore, the judge was familiar with the relevant history and, as she said in her judgment, took account of that history in reaching her decision.
21. It is not the role of the appeal court to substitute its own decision for that of the court below. It is only if the court can be said to have gone wrong in law or in fact, or in the exercise of a discretion, that the appeal court should interfere with the decision. The judge's decision here was one involving the exercise of discretion. Where an appeal court is faced with a challenge to the exercise of a discretion, it will only interfere in limited circumstances, in particular, where the court below has taken account of factors which it should not have considered or has not considered factors which it should have done, or where there is some manifest error in the basis on which the judge has exercised that discretion.
22. In this case, the judge gave very serious consideration to the history of the matter. She was clearly aware that this was an unusual step to take in relation to a civil restraint order, but, as she explained at some length in her judgment, the persistence of the appellant in making hopeless applications was clearly a matter of considerable concern to the court, and imposed a significant burden on the resources, judicial and otherwise, of the court system.
23. One aspect of the case which has troubled me is that it is not at all clear that, at the time the matter was before the judge, the appellant had deliberately been in breach of the terms of the order. Indeed, having heard the appellant in person today, I am satisfied that she would be most reluctant to breach the terms of the order. She is now aware of what those terms require and would do her best to avoid a breach. However, I am not at all satisfied that she will not persist in these hopeless applications relating to the absolute charging order made nearly 20 years ago, which have so troubled the judge in the court below.
24. There is some doubt as to whether, strictly speaking, the appellant has adopted an impermissible approach to the making of such applications. Her usual (but not invariable) approach is simply to send a letter to the court; on occasions the appellant uses the formal application form. Whatever means is adopted, the appellant tells me (and I accept) that she provides the appropriate notice to the respondent before actually making the application for permission to apply. However, the question has arisen whether the Practice Direction requires an application to be on a formal application form or enables it to be by letter. The Practice Direction refers to an application for permission which "must be made in writing". That is as much guidance as one gets. The appellant interprets that as meaning that she is entitled to make the application by letter. It may be that when a CRO is made the court has some discretion to stipulate more precisely how any application for permission may be made. The present order is not specific.
25. In those circumstances, and in the absence of some authority of which I am unaware, I consider that the appellant is entitled to make applications pursuant to the extended civil restraint order by letter, provided that she complies with the notice requirements and the other terms of the order in relation to such applications. It is not clear from the judgment below whether that is the view of the judge herself. However, this is not a matter which is before me by way of proposed appeal. I will not, therefore, make any further comment.
26. To return to the main issue, this lady, although making persistent, numerous and hopeless applications, has not in the recent past deliberately breached the terms of the extended civil restraint order. Nor is she likely to do so in the future. In those circumstances, was the judge in error in affixing the penal notice to the order? I have come to the conclusion that, in the exercise of a very wide discretion, the judge was entitled to take the steps she did to remind the appellant, as someone who persists in acting in a way which is deprecated, and is damaging to the administration of justice and expensive, that she must comply to the letter with her obligations under the order. As I have said, this is a review court and is not conducting a rehearing. It is not, therefore, appropriate to substitute the decision that an appeal court might have made itself, in place of a decision that the judge was entitled to make within the reasonable scope of her discretion.
27. Therefore, I will grant the appellant's application for permission to appeal on the points that I have just dealt with, but I will dismiss the appeal.

Other matters

28. The other matter which is raised in the appeal notice is a yet further application to set aside the charging order of 20^th July 2001. That, in my view, is not an application that can be made by way of an appeal notice against the order that the judge made in the latter part of 2017. It is also a matter which has now been closed for many years. One only needs to refer to the finding of the Court of Appeal in January 2015, to which I have already referred, that a challenge to the charging order was hopeless and any application to set it aside was entirely without merit. In so far as it is necessary, therefore, I dismiss that application as entirely without merit. There should be no further attempt to reinstate that matter.
__________