Canty v Canty

A final possession order must be obeyed unless and until it is set aside. A party cannot resist committal for contempt by reopening allegations that the order was obtained fraudulently, particularly where the order has been repeatedly upheld on appeal. Wilful and deliberate refusal to comply with a possession order, together with relevant statutory obligations in bankruptcy, may justify immediate imprisonment. A two-member Court of Appeal is properly constituted under Supreme Court Act 1981, section 54(2).

The trustee in bankruptcy obtained a possession order over the bankrupt’s property in 2001. Permission to challenge that order was refused, and later appeals concerning enforcement and possession were dismissed, including a substantive appeal to the Court of Appeal on 8 February 2006.

After the bankrupt remained on the property roof to prevent enforcement, the county court found him in contempt and sentenced him to six months’ imprisonment. He appealed, alleging that the possession order rested on a fraudulent witness statement, seeking to cross-examine the trustee, and objecting to the constitution of the appellate court. The central issues were whether the final possession order could be revisited in the committal appeal and whether the custodial sanction was justified.

1. Appeal dismissed. The possession order was final. Having been considered and affirmed on appeal, it was not open to the Court of Appeal, on an appeal against committal, to revisit whether it had been properly made. The application to cross-examine the trustee was therefore refused and was recorded as totally without merit.
2. The appellant’s refusal to comply was wilful and deliberate. His belief that the bankruptcy and possession orders ought not to bind him did not relieve him of the duty to obey them. His conduct constituted contempt of court, together with breaches of the obligations referred to in sections 333, 363 and 312 of the Insolvency Act.
3. The court should be reluctant to imprison parties unnecessarily, but the persistent and deliberate refusal to comply made an immediate custodial sanction appropriate. A six-month sentence, ordinarily involving about three months before release on licence, was not manifestly excessive.
4. The objection to the constitution of a two-member court failed. Order 59 of the Rules of the Supreme Court was out of date, and section 54(2) of the Supreme Court Act 1981 made clear that the court was properly constituted even with one member; two Lords Justices were therefore sufficient.
5. Although the hearing had originally been listed for directions, the court had heard all relevant submissions and appropriately treated it as the substantive appeal. The appeal was certified as totally without merit.

1. Court of Appeal (Civil Division): The appeal against the county court committal order was dismissed. The court treated the hearing as the substantive appeal and recorded the appeal as totally without merit.
2. Court of Appeal (Civil Division): A previous substantive appeal concerning the possession order was dismissed on 8 February 2006, with no basis for challenging the possession order.
3. High Court: Neuberger J refused permission to appeal against the possession order on 31 January 2002. Later permission and enforcement proceedings were also addressed by Patten J, Hart J, Peter Smith J and Arden LJ.
4. Cardiff County Court: HHJ Wyn Williams made a committal order on 2 October 2006, finding contempt for refusal to comply with the possession order and imposing six months’ imprisonment.