Law Report: Committal orders stand despite procedural breach: Re M; B v B. Court of Appeal (Lord Donaldson of Lymington, Master of the Rolls, Lord Justice Nolan and Lord Justice Scott), 23 July 1992

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A committal order should not be set aside for breach of the proper procedures for its service on the contemnor if the contemnor had suffered no injustice.

The Court of Appeal dismissed appeals by two appellants against orders for committal for contempt and the sentences imposed.

In the first case, Mr M was the plaintiff in wardship proceedings. Without provocation, Mr M struck the social worker involved in the face with a rolled up newspaper. Later he climbed the roof of the Royal Courts of Justice and hurled slates into the courtyard below.

On 5 June 1992, Sir Stephen Brown P found Mr M, who was present in court and represented by solicitors and counsel, in contempt of court and sentenced him to six months' imprisonment. The formal order that Mr M be committed to prison was sealed on 11 June and copies were sent to Mr M's solicitors, the other parties' solicitors and the governor of the prison. When Mr M complained he had not been served personally by the local authority, it was served him a copy on 3 July.

In the second case, Mr B was subject to injunctions designed to prevent him assaulting, threatening, harassing or molesting Mrs B. He was twice found in contempt of court by breaching the injunctions and sentenced to suspended prison sentences. On 12 June 1992, the third occasion when he was found in breach of the injunctions, Judge Woodford at Ipswich County Court sentenced Mr B, who was represented by counsel and solicitors, to eight months' imprisonment. A prison official received a copy of the committal order on Form N111 on 3 July 1992.

Mr M appealed on the ground that he was not personally served with the committal order until 3 July. Mr B appealed on the grounds that the committal order was not served on him within 36 hours in breach of Order 29 rule 1(5) of the County Court Rules and the committal order was in Form N111 rather than Form N79 and contained no reference to the right of the contemnor to apply to the court to purge his contempt.

Eleanor Platt QC and John Mitchell (Powell Spencer & Partners) for Mr M; Robin Barda (Official Solicitor) for the minors; Richard Harper (Borough Solicitor) for the local authority; Eva MB Joyce (Tomlinson & Dickinson, Sudbury) for Mr B; Edward Irving (Bates Wells & Braithwaite, Sudbury) for Mrs B.

LORD DONALDSON MR said that the obligations as to service of committal orders were not the same in the High Court and the County Court. In the High Court the applicant's solicitors were responsible for serving the committal order. In these appeals the court was concerned with the obligation to give the contemnor the written record of the findings against him and of the sentence passed.

By a series of decisions, the Court of Appeal had created a rule of law for which there was no justification. The rule of law which seemed to have evolved was that 'failure to comply with the requirements of CCR Order 29, rule 1(5) is fatal to the lawfulness of the committal' (Howes v Howes (1992) NLJ 753) and that in contempt cases the court's powers under section 13(3) of the Administration of Justice Act 1960 would be used only in exceptional cases.

Whilst the court should always be quick to identify and condemn any departure from the proper procedures, the interests of the victim and of maintaining the authority of the courts required that in deciding what use to make of its powers under section 13(3), the Court of Appeal should ask itself whether, notwithstanding such a departure, the contemnor had suffered any injustice. It did not follow that he had. Nor did it follow that the proper course was to quash the order.

If he had not suffered any injustice, the committal order should stand, subject, if necessary, to variation of the order to take account of any technical or procedural defects. In other cases it might be possible to do justice between the parties by making 'such other orders as may be just'. If justice required the committal order to be quashed, among the options was that of ordering a re-trial.

The only departure from the procedure in Mr M's case was that the copy of the order was served on his solicitors by that court rather than by the applicant's solicitor. It was impossible to detect any element of injustice to Mr M and his appeal would be dismissed.

Consideration should be given to the three changes in the procedures of the High Court: (1) The sealing of committal orders should have the highest priority and should take place preferably on the day of committal and certainly as soon as practicable thereafter. (2) The form of committal order should be amended to draw the contemnor's attention to his right to apply to the court to purge his contempt. (3) There should be personal service of a copy of the committal order on the contemnor by the court itself acting by one of its officers, probably the tipstaff.

In Mr B's case, although there was regrettable delay in serving the order no injustice was suffered by Mr B. Consideration should be given to the following matters in County Court procedures: (1) Court staff should be reminded of the urgency with which the documentation of contempt cases should be undertaken and of the need to comply strictly with the rules. (2) Service of committal orders should always be made personally on the contemnor. (3) Either Form N111 should be resurrected and amended to include a reminder that there was a right to apply to purge a contempt or Form N79 should be revised to take account of proceedings under the Domestic Violence and Matrimonial Proceedings Act 1976.

Lord Justice Nolan and Lord Justice Scott concurred.