Benson v Richards

The court’s power under CCR 29 rule 1(7) to dispense with service requirements is broad and may be exercised retrospectively. The court must exercise it carefully, but may consider the practical reality of the orders, the defendant’s actual knowledge, the purpose of the requirement, and whether any injustice or prejudice has occurred. This may permit enforcement of a mandatory injunction despite technical defects in service or service after the stipulated date.

An appellate court should exercise first-instance committal jurisdiction only exceptionally, particularly where the person’s liberty is at risk and they are unrepresented.

The claimant obtained a county court declaration as to the boundary between neighbouring land and a mandatory injunction requiring the defendant to remove a fence. The defendant persistently refused to remove it. A series of later orders fixed or repeated dates for compliance, but were affected by defects concerning service and penal notices.

Judge Alton found that the defendant had deliberately breached the original order and committed her to prison for three months. She treated the later orders as technically unenforceable because they had been personally served after the dates fixed for compliance. The defendant appealed against the committal order. The claimant, by respondent’s notice, contended that the later orders could also support committal.

1. Appeal dismissed. The court upheld the finding that the defendant had persistently and deliberately disobeyed the requirement to remove the fence. The three-month sentence was an appropriate exercise of the county court judge’s discretion, given the duration and deliberate nature of the breach.

2. The court agreed that the mandatory removal provision in the order of 8 May 1998 was intended to be final in effect. The wording giving the order interlocutory duration qualified the separate restraint on trespass, not the removal obligation. The court did not need to resolve all of the technical questions arising from the later perfection of the reserved order.

3. The judge had taken too narrow a view of the discretion in CCR 29 rule 1(7). [1997] 1 WLR 1256 established that the discretion was unfettered and could operate retrospectively. The later orders served the single continuing purpose of securing removal of the fence. The defendant knew precisely what was required and the consequences of non-compliance. Dispensing with the defects in service, including service after the nominated dates, caused her no injustice.

4. Differences in the wording of the orders did not create material uncertainty. The defendant knew which fence had to be removed, and no prejudice had been identified.

5. The court declined to determine the claimant’s fresh committal application at first instance. Such a course should be reserved for exceptional circumstances, especially where the defendant is unrepresented and imprisonment may follow. The application was remitted to the High Court in Birmingham for hearing on 21 October 2002.

• Court of Appeal (Civil Division) — In this judgment, [2002] EWCA Civ 1402, the court dismissed the defendant’s appeal against committal and remitted the claimant’s fresh committal application to the High Court.
• Telford County Court — On 1 August 2002, Judge Alton committed the defendant to three months’ imprisonment for persistent and deliberate contempt of the order requiring removal of the fence.
• High Court at Birmingham — In January 2002, Neuberger J dismissed the defendant’s application concerning the boundary and remitted the claimant’s relevant enforcement applications to the county court before a new judge.
• Telford County Court — In May 1998, Recorder Oliver-Jones QC declared the boundary and ordered removal of the fence.