Seiwa v Sankofa

In committal proceedings, the criminal standard of proof must be applied with care. Where a complainant relies on diary entries and one entry is shown to be unreliable, the judge should compare the relevant entries with the oral evidence before deciding whether the allegations are proved beyond reasonable doubt. Failure to conduct that comparison may render contempt findings unsafe. A contempt finding remains appealable despite the absence of punishment because it may have continuing practical consequences. A costs order against a litigant in person with limited means should be supported by an inquiry into means, an assessment of what it is reasonable to pay, and an explanation for the order.

The appellant challenged two orders made in proceedings concerning injunctions against intimidation, harassment and pestering arising indirectly from arrangements for contact with the parties’ children under Part IV of the Family Law Act 1996.

Judge Cox made a costs order against the appellant on 15 August 2003. After substantial delay, Judge Welchman found two breaches of the injunction on 6 September 2004, made no order for punishment, and ordered the appellant to pay one-fifth of the respondent’s costs. The central issues were whether the costs orders were properly made and whether the contempt findings were safe, given the delay and the evidence contained in the respondent’s diaries.

Both appeals were allowed unanimously.

1. Costs order of 15 August 2003. The order against the appellant was set aside and quashed. Given his financial circumstances and responsibilities, any costs order should have been accompanied by an investigation of his means, an assessment of a reasonable amount to pay, whether substantive or nominal, and an explanation for making an unusual order. No adequate explanation or means assessment had been provided.
2. Contempt findings. Judge Welchman had correctly directed himself to the criminal standard of proof and had assessed the parties’ oral evidence. However, an earlier diary entry had been shown to concern a day on which the alleged incident could not have occurred, damaging the respondent’s credibility. The diary entries relating to the two allegations found proved were more elaborate and in some respects inconsistent with the oral evidence. The judge should have compared those entries with the evidence given in the witness box. Without that exercise, the findings were unsafe.
3. The appellant required no permission to appeal an order relating to the liberty of the subject. The absence of punishment did not remove the practical significance of a contempt finding, which could adversely affect future employment. The findings of contempt were therefore set aside.
4. The order requiring payment of one-fifth of the respondent’s costs of the committal proceedings fell with the contempt findings and was also set aside.
5. The renewed injunction was not disturbed and remained in force until 1 October 2005.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 752, both appeals were allowed. The contempt findings and associated costs order were set aside, as was the earlier costs order. The injunction remained in force until 1 October 2005.
• Lambeth County Court — Judge Cox made the first costs order on 15 August 2003. Judge Welchman later found two breaches of the injunction, made no punishment order, and ordered payment of one-fifth of the respondent’s costs.