De Montford v McKenzie

In committal proceedings, procedural rules requiring particularised notice protect fair notice, rather than create a technical obstacle to a hearing. Where allegations are amended or clarified and the respondent knows the case and can answer it without surprise or disadvantage, the court may proceed without a further adjournment.

An appellate court will rarely interfere with findings based on credibility where the trial judge applied the criminal standard of proof and carefully assessed the evidence. Earlier findings about a witness in different proceedings do not prevent a fresh assessment. Independently established breaches may justify contempt and a suspended term even if another allegation is vulnerable.

The parties were former spouses. In proceedings under Part IV of the Family Proceedings Act 1996, the respondent gave undertakings not to intimidate, harass or contact the applicant and not to approach her former home.

The applicant later began committal proceedings alleging breaches. After an initial notice was found insufficiently particularised, it was amended and the trial judge refined the allegations. Following an evidential hearing, he found five breaches and imposed suspended committal orders, together with further injunctions.

The respondent appealed, principally arguing that the notice still failed to comply with Order 29, rule 4A of the County Court Rules, and challenging the findings by reference to earlier credibility assessments made in related proceedings. The central issues were whether the hearing was procedurally fair and whether the findings and penalties could stand.

1. Appeal dismissed. Wall LJ gave the judgment, with Neuberger LJ agreeing.
2. Order 29, rule 4A of the County Court Rules exists to secure procedural fairness. It requires the respondent to know which undertaking is alleged to have been broken and how it was broken. The initial defects did not invalidate the later hearing. The notice had been amended, the judge had refined the allegations into clear matters, and the respondent knew the case he had to meet. He had not been taken by surprise or disadvantaged and was fully able to present his case. A further adjournment was not required, particularly as none had been sought.
3. The challenge to the findings of fact could not succeed. In committal proceedings the criminal standard of proof applied. The trial judge, having heard the witnesses, was entitled to choose between competing accounts where he was sure of the relevant facts. The fact that he had made adverse observations about witnesses in earlier proceedings did not prevent him from accepting their evidence on different incidents. A witness may be reliable about one matter and inaccurate about another. The judge had to approach the current case with an open mind, and the evidence showed that he did so; he rejected one further allegation as unproved.
4. The findings concerning the driving incident, the anonymous letter and the communications with the hotel vendor’s solicitor were therefore open to the judge. The written communications, considered independently of the disputed credibility evidence, were sufficient to establish breaches involving harassment and contact. Either or both incidents justified findings of contempt and a suspended sentence of imprisonment. No criticism could be made of the penalties or additional injunctions.
5. The court observed that, if later investigations established that the judgment had been obtained on false evidence, an application could be made to set aside the judgment and committal orders. That possibility did not affect the present appeal.

1. Court of Appeal (Civil Division) — appeal against the suspended committal orders dismissed: [2004] EWCA Civ 1189.
2. Rhyl County Court — Wilson J found five breaches of undertakings and made suspended committal orders, with further injunctions.