Civil procedure – Contempt of court – Committal – Strike out – Appellant company landlord claiming possession of flat from respondent tenant – Judge warning witness not to discuss evidence with anyone during overnight trial adjournment – Witness explaining discrepancy in evidence next day by reference to overnight communications – Director held in contempt of court for communications during adjournment – Judge ordering suspended prison sentence – Judge striking out claim and defence to counterclaim – Appellants appealing – Whether judge’s warning constituting court order – Whether judge having jurisdiction – Whether judge following correct procedure – Appeal allowed
The first appellant company acquired a site at Oak End Way, Gerrards Cross, with a view to redeveloping it for residential purposes. The redevelopment was to be financed by loans from a variety of lenders, one of which included a personal guarantee from the second appellant who was the sole director of the first appellant. The respondent tenant occupied a flat on the site under an assured or statutory tenancy governed by the Rent Act 1977. The respondent declined to vacate the flat to allow the development of that part of the site to proceed arguing that the appellants’ various offers did not amount to suitable alternative accommodation when any order for possession took effect.
The appellants commenced proceedings in the county court for possession of the flat and associated amenity space. The respondent counterclaimed for breach of repairing obligations under the existing tenancy. He also alleged that the appellants had obstructed his right of way along the access road and trespassed by attempting to enter garages which he rented.
The second appellant gave his evidence-in-chief at the trial which was adjourned overnight during his cross-examination. The judge warned him not to discuss his evidence with anyone while still under oath. The following day the second appellant continued giving evidence in cross-examination and contradicted part of his evidence-in-chief. When questioned about the discrepancy, he volunteered that he had spoken to an adviser to clarify his options if the claim failed. He had also sent e-mails to his legal representatives who did not respond.
The judge held that the actions of the second appellant were in contempt of her order not to communicate with others during the adjournment and remanded him in custody until the next morning when he was sentenced to 14 days’ imprisonment suspended for three months. The claim and the defence to the counterclaim were struck out. The appellants appealed.
Held: The appeal was allowed.
(1) Witnesses were commonly given warnings by the trial judge not to discuss their evidence until after it had been completed. That did not amount to an order as such, nor could it be treated as one in this case. The purpose of the warning was to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gave was his or her own best recollection unassisted by any other person. If a witness failed to comply with a judge’s warning, the judge was required to assess the damage caused by that failure. The obvious approach was to establish what was discussed and give either a discount or no weight to the evidence as appropriate. It was difficult to envisage why such an order would ever be necessary or appropriate but a judge wishing to make such an order was required to set out the precise terms and the consequences of breaching it, which the judge in the present case had failed to do. Therefore, there was no order capable of being breached by the second appellant.
(2) Furthermore, the county court had no jurisdiction to deal with the alleged contempt as one committed in the face of the court as there had been no interruption of the proceedings of the court within the meaning of section 118(1)(b) of the County Courts Act 1984. The statutory provisions were not to be given a purposive construction that was broad enough to encompass any conduct which might interfere with the trial process. Read in context, section 118(1)(b) was directed to conduct which actually disrupted the proceedings and which was therefore a contempt committed in the face of the court. Nothing which the second appellant had done interrupted the proceedings, although the aftermath resulted in wasting a considerable amount of court time.
(3) Where committal was sought for breach of an order of the court the procedure was governed by CPR 81. The power of a county court judge to commit a person for breach of an order of the court’s own motion should only be exercised if no other course was available to protect the court process and the proper administration of justice. Even when the conduct amounted to a contempt in the face of the court, the guidance in the Practice Direction under CPR 81 was not to act precipitously. The judge in the present case had halted proceedings without giving the second appellant or his legal representatives time properly to prepare for a committal hearing. Moreover, the second appellant had not been given an opportunity to apologise or explain his actions. The judge appeared to have regarded his breach of her warnings as conclusive of all issues relating to his committal. Notwithstanding that there was no order to be breached, the judge failed to follow the procedure set out in CPR 81. Her failure to observe and apply the safeguards led to a hearing which was neither fair nor impartial. In any event, the judge had lacked jurisdiction to deal with that species of contempt as the prior permission of the High Court was required.
(4) The judge had overreacted and made an order which could not be justified. This was not the type of case where an order striking out the claim or defence was the only course left to the trial judge to avoid the risk of substantial injustice. The judge’s orders on the committal, sentence of imprisonment and strike out of the claim would be set aside. The claim and counterclaim would be transferred to the Central London County Court for any necessary directions to be followed by a new trial in front of a different judge.
The appellants appeared in person; Oliver Hyams (instructed by Duncan Lewis Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
