Bell v Tuohy

A warrant for possession issued before the date fixed for possession is a nullity. Obstructing its execution cannot constitute contempt. A person who knowingly obstructs the lawful execution of a valid warrant may, however, be in contempt.

Failure to obey an order requiring possession to be delivered by a specified date may also constitute contempt. Committal is an exceptional remedy of last resort. Procedural defects, including the absence of a penal notice, may be waived where the alleged contemnor understood the order and the risk of imprisonment, received a fair opportunity to obtain advice and suffered no injustice.

Following the bankruptcy of Mr and Mrs Tuohy, their home vested in their trustee under section 306 of the Insolvency Act 1986. The Liverpool County Court ordered its sale and required them to deliver possession by 11 October 2001. A warrant for possession was nevertheless requested and issued in August. When bailiffs attempted to execute it after the possession date, Mr Tuohy denied them entry.

The trustee applied to commit Mr and Mrs Tuohy for contempt. After an adjournment permitting legal representation, His Honour Judge Marshall Evans QC committed Mr Tuohy to prison for seven days. The judge relied on his failure to obey the possession order, obstruction of the bailiffs and declared refusal in open court to vacate. Mr Tuohy appealed against that order.

1. Appeal dismissed unanimously. The majority, Mr Justice Neuberger and Lord Justice Kennedy, held that the prematurely issued warrant was a nullity. Order 26, rule 17(2) of the County Court Rules, the prescribed forms, the warrant's purpose and relevant policy considerations established that no warrant could exist before the date for possession had passed. Mr Tuohy therefore committed no contempt by obstructing its execution. Lord Justice Mantell dissented on this issue. He regarded the warrant as irregular but effective until set aside and would have upheld the contempt finding based on obstruction.

2. An order requiring possession to be delivered by a specified date may be enforced by committal. Orders 26 and 29 preserved that jurisdiction. Committal for disobedience of a possession order is nevertheless a last resort and is appropriate only exceptionally, where no reasonable alternative is available.

3. The possession order had not contained a penal notice, and the committal application had several procedural defects. The court could dispense with the relevant requirements under Order 29, rule 1(7), and paragraph 10 of the Practice Direction – Committal Applications permitted defects to be waived where they caused no injustice. Each defect had to be examined for prejudice, individually and cumulatively. The number of defects did not determine the question.

4. The defects caused no prejudice. Mr Tuohy knew the terms of the possession order and had repeatedly received clear warnings that continued disobedience could lead to imprisonment. The adjournment enabled him to obtain representation and advice. His deliberate refusal continued after full consideration. The judge was therefore entitled to commit him briefly so that possession could be obtained peacefully.

5. A declared refusal in open court to obey an order may fall within section 118(1) of the County Courts Act 1984 where its circumstances and manner openly and wilfully challenge the court's authority. Mr Tuohy's conduct crossed that threshold. Mr Justice Neuberger nevertheless doubted whether immediate imprisonment on that ground alone would have been appropriate.

1. Court of Appeal: The appeal was dismissed unanimously. The committal remained justified by the continuing breach of the possession order, although the majority rejected obstruction of the invalid warrant as a ground.

2. Liverpool County Court: On 5 November 2001, His Honour Judge Marshall Evans QC committed Mr Tuohy to prison for seven days for contempt. He relied on disobedience of the possession order, obstruction of the bailiffs and Mr Tuohy's refusal in court to comply.