Marshall Properties Ltd. v R H Tomlinssons (Trowbridge) Ltd.

Committal for contempt is quasi-criminal. A judge must not indicate before the evidence is complete that imprisonment will follow if the alleged breach continues. After finding a breach, the contemnor must have a proper opportunity to make representations on penalty. Where compliance is the purpose of committal, the court should consider whether a suspended sentence will suffice. Immediate imprisonment for a first breach of an untested injunction, imposed without that opportunity and without considering suspension, may be procedurally unsafe and draconian. An appellate court will not normally disturb a trial judge’s credibility finding unless plainly wrong. Breach findings may remain recorded even though the penalty is quashed.

Marshall Properties obtained without-notice injunctions requiring the removal of a lorry from a level crossing and restraining obstruction of a claimed right of way. Following non-compliance, the Bath County Court found Mr Rothschild, the second defendant, in contempt and sentenced him to three months’ imprisonment for each breach, concurrently. He sought permission to appeal against the refusal of the judge to recuse himself and the refusal to discharge the injunction. He also challenged the finding that he controlled the vehicle and the procedure and sentence imposed on committal. The central issues were whether the interlocutory orders remained live, whether the factual finding could be disturbed, and whether the committal process and penalty were safe.

Disposition. Lord Justice Ward dismissed the applications concerning recusal and the refusal to discharge the interim injunction. Those matters had become academic or had no realistic prospect of success. He allowed the appeal against committal to the limited extent that the breaches remained recorded, but no penalty was imposed and the imprisonment sentence was quashed. Lord Justice Laws agreed with the judgment and order.

1. Recusal. The judge’s personal familiarity with the right of way, acquired from walking his dog there, did not justify recusal. Such knowledge was no different in principle from knowledge obtained by viewing photographs or inspecting the site.
2. Finding of breach. The Court of Appeal would not interfere with the judge’s finding that Mr Rothschild controlled the vehicle. The judge had heard the witnesses and disbelieved their evidence. The finding was not plainly wrong.
3. Procedural fairness. Committal proceedings are quasi-criminal. It was improper for the judge, before the case had been fully heard, to make it plain that imprisonment would follow if the lorry remained. After finding the breaches proved, he also erred by moving immediately to sentence and requiring Mr Rothschild to wait for the bailiff without giving him an opportunity to address the court on penalty. The judge had further failed to identify the breach with complete accuracy and had been unclear about the proper procedure.
4. Sentence. The judge’s legitimate purpose was to secure compliance with the injunction. A suspended sentence could have served that purpose. An immediate three-month sentence for a first breach of an injunction whose merits had not been tested, with no return date or demonstrated application to review it, was draconian and unsafe, particularly without considering suspension.

1. Court of Appeal (Civil Division): Dismissed the applications concerning recusal and discharge of the interim injunction. Allowed the committal appeal to the limited extent that the breaches remained recorded but quashed the imprisonment sentence and imposed no penalty.
2. Bath County Court: Refused recusal and discharge applications, found Mr Rothschild in breach of the injunction, and imposed concurrent three-month terms of imprisonment. He was later released after purging his contempt.