London Borough of Hillingdon v Vijayatunga

Procedural defects in committal proceedings do not automatically invalidate a committal order. The court may waive a defect where the contemnor received a full and fair trial, the order rested on valid grounds, and no injustice or prejudice resulted. Clear identification of the injunction and allegations may suffice, and using a witness statement instead of an affidavit may be a technical defect only. An injunction discharged with immediate effect operates prospectively, not retrospectively, where the order preserves committal proceedings for earlier breaches. Sentencing remains primarily for the first-instance judge, with appellate interference justified only where the penalty was plainly wrong.

The local authority obtained an interim injunction restraining the respondent from feeding birds or cats in communal areas, going onto a common roof, or placing belongings there. The injunction was discharged on 29 November 2006, when undertakings were recorded without prejudice to pending committal proceedings.

HHJ Birtles found 12 breaches proved to the criminal standard, fined the respondent £1,000 and ordered costs of £3,500. The appeal challenged the form and service of the committal application, the use of witness statements rather than affidavits, the effect of the discharge and undertakings, and the penalty. The central issue was whether those matters invalidated or prevented the committal.

Ward LJ gave the leading judgment. Mr Justice Bennett and Sir Peter Gibson agreed.

1. Procedural defects. The application sufficiently identified the injunction and the numbered provisions said to have been breached. It was unnecessary to reproduce the whole injunction. Nor was it fatal that the schedule did not expressly link every allegation to a particular paragraph, because the alleged conduct made the relevant paragraph clear. Allegations that could not constitute breaches were not relied upon and did not invalidate the schedule.
2. The court proceeded on the basis that the prescribed notice had been served. In any event, the respondent attended the hearing, and the alleged omission would have caused no injustice. The use of witness statements rather than affidavits was also only a technical defect, particularly since the evidence was heard at trial. Under CPR Order 29, rule 14a, an application notice was an available form for committal in existing proceedings.
3. Waiver of defects. Paragraph 10 of the practice direction was not made under statutory authority, but was good guidance which the court would follow unless shown to be wrong. The approach in M v P (Contempt of Court Committal Order) [1993] Fam 167 and Nicholls v Nicholls [1997] 1 WLR 314 supported exercising the discretion to overlook defects where the contemnor had a fair trial, the order was made on valid grounds, and no injustice or prejudice resulted. Those conditions were satisfied.
4. Effect of discharge. The order of 1 December 2006 discharged the injunction with immediate effect and expressly preserved the committal proceedings. It did not operate retrospectively. The injunction remained in force until discharge, so committal proceedings for earlier breaches remained available.
5. Penalty and outcome. The penalty was principally a matter for the first-instance judge. The judge had considered the respondent’s means, the deliberate and persistent breaches, her admissions and her knowledge as a practising solicitor. The Court of Appeal could not say that the £1,000 fine was plainly wrong or excessive. The appeal was dismissed with costs summarily assessed at £3,210, payable within three months.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 730: appeal dismissed with costs summarily assessed at £3,210.
• County Court, HHJ Birtles — On 5 December 2006, in proceedings transferred from Uxbridge County Court, found 12 breaches of the interim injunction proved, imposed a £1,000 fine and ordered £3,500 costs.
• County Court, District Judge Banks — On 29 November 2006, discharged the interim injunction with immediate effect, recorded undertakings and preserved the pending committal proceedings.