Evans v Evans

On an appeal against committal for contempt, the fact that counsel may have missed evidential opportunities or made forensic choices which could have been made differently is insufficient by itself to justify reopening the case. Appellate intervention requires more than hindsight and disagreement with counsel’s judgment. The complaint must have a tenable factual basis and disclose a fundamental error involving the kind of explicable and catastrophic departure from instructions capable of vitiating a criminal conviction. Where the committal judge’s conclusion rests principally on direct impressions of witnesses, a subsidiary credit issue will not ordinarily warrant an adjournment or rehearing.

Ian Anthony Evans appealed against a six-week sentence for contempt imposed by His Honour Judge Case in the Chester County Court after the judge found that he had breached an injunction protecting Diane Evans. His application to purge the contempt failed. The appeal initially raised a dispute about the time for lodging the notice, but the Court of Appeal accepted that the appeal was properly constituted.

The appellant argued that his trial counsel had missed opportunities to lead evidence and cross-examine Diane Evans on credibility. The central issue was whether those alleged omissions justified appellate intervention by analogy with criminal appeals.

1. Appeal dismissed. Lord Justice Thorpe and Lord Justice Sedley concluded that there was no sufficient basis for a further hearing or for setting aside the committal. There was no order for costs, save for detailed assessment of the applicant’s publicly funded costs.
2. Applicable approach. The court was prepared, for present purposes, to assess the appeal by an approach echoing criminal appellate practice. The authority of R v Clinton [1993] 2 All ER 998; [1993] 1 WLR 1181 showed the exceptional character of intervention where counsel’s conduct involved a fundamental error of the kind described as an explicable and catastrophic departure from instructions. Counsel’s forensic choices, even if capable of being made differently with a different result, did not meet that threshold.
3. Assessment of the evidence. Lord Justice Thorpe held that the analysis had to concentrate on the trial judge’s judicial focus. The judge had principally assessed the credibility and demeanour of the witnesses concerning the alleged delivery and the appellant’s alibi. The disputed evidence about the appellant’s engagement and the children’s paternity was subsidiary, and the latter was largely unrelated to the principal issue.
4. Basis for criticism of counsel. Lord Justice Sedley emphasised that criticisms of former counsel required care and a tenable factual foundation. The complaints were nebulous, unsupported by an account from the appellant or trial counsel, and had not been put to the former advocate. They therefore disclosed no sound ground for starting the case again.

1. Court of Appeal (Civil Division) — In [2003] EWCA Civ 593, dismissed the appeal against the committal and sentence.
2. Chester County Court (His Honour Judge Case) — Found the breach of injunction proved, imposed six weeks’ imprisonment for contempt, and refused the subsequent application to purge the contempt.