Middlesbrough Borough Council v Turnbull

In contempt proceedings, a notice to show cause does not reverse the burden of proof. The applicant must establish the breach before the alleged contemnor is required to show cause against detention. A committal hearing may be listed in less than 14 clear days where the court directs otherwise, but routine abridgement is undesirable and the respondent must have reasonable preparation time. Procedural irregularity warrants relief only where it causes prejudice or injustice. Hearsay is admissible in this type of litigation, although it affects weight. The maximum committal term is reserved for the worst cases. Sentence length must reflect both disapproval and future compliance, and bear a reasonable relationship to the available maximum.

Middlesbrough Borough Council obtained an injunction excluding Christopher Turnbull from the Triangle area. Following alleged further breaches, the Middlesbrough County Court proceeded in his absence and, on 7 April 2003, committed him for contempt for two years.

Turnbull appealed out of time. He challenged the Form N78 procedure, the short period between service and hearing, the hearing in his absence, the use of hearsay evidence, and the severity of the penalty. The central issues were whether any procedural defect caused injustice and whether the two-year term was proportionate to the contempts proved.

1. Disposition. Kennedy LJ granted permission to appeal out of time only in relation to the penalty. The appeal was allowed to the extent that the two-year committal term was reduced to nine months. Peter Gibson LJ agreed with the reasoning and order.
2. Form N78 and burden of proof. The procedure did not impose an impermissible burden on the alleged contemnor. The local authority had to establish the facts constituting the breach. The alleged contemnor was then entitled to show cause why detention should not follow.
3. Notice period. Paragraph 4.2 of the Practice Direction to Order 29 of the County Court Rules permits a hearing less than 14 clear days after service where the court directs otherwise. The court had made such a direction in this case, so there was no non-compliance. A general practice of listing committal hearings only a few days after service was nevertheless undesirable because respondents require reasonable time to respond and, if necessary, prepare a defence.
4. Procedural defects and absence. Applying Nicholls v Nicholls [1997] 1 WLR 314, the court would have granted no relief for a procedural defect without demonstrated prejudice or injustice. Proceeding in the appellant’s absence was appropriate on the particular facts. Hearsay evidence was admissible in this type of litigation. Its hearsay character affected weight, and the evidence was supported by direct observations from wardens.
5. Penalty. The maximum term should be reserved for the worst cases. The sentence had to mark disapproval, secure future compliance, reflect the intrinsic gravity of the contempt, and bear a reasonable relationship to the available two-year maximum. Repeated breaches and the earlier committal justified a sentence longer than the first. However, the appellant’s age and the absence of violence or direct threats meant that two years was manifestly excessive. A term of nine months was substituted.

• Court of Appeal (Civil Division): On 28 August 2003, granted leave to appeal out of time only in relation to penalty and reduced the committal term from two years to nine months.
• Middlesbrough County Court: His Honour Judge Briggs committed Turnbull for two years on 7 April 2003 for contempt by breach of the injunction made on 3 September 2002.