Phillimore v Surrey County Council

Appellate courts should respect case-management decisions on adjournments unless no reasonable judge could have made them. An inadequate medical note, a history of non-attendance and evidence that the party was fit for work may justify refusing an adjournment and proceeding in his absence. For repeated, deliberate and dishonest breaches of an injunction, immediate custody may be appropriate where a fine or suspended sentence would not secure compliance and a non-custodial sentence cannot reflect the seriousness of the breaches. On a sentence appeal, the issue is not what term the appellate court would have selected, but whether the term is manifestly excessive or outside the legitimate range.

The appellant faced committal proceedings brought by Surrey County Council for breaches of a consent injunction. Guildford County Court refused his application to adjourn on medical grounds, proceeded with the hearing in his absence, found the breaches proved and sentenced him to nine months’ imprisonment.

He brought two appeals. The first challenged the refusal to adjourn. The second challenged the decision to impose immediate custody and the length of the sentence. The central issues were whether the case-management decision was unreasonable or perverse, and whether the sentence was outside the proper range.

Both appeals were dismissed.

1. Refusal of an adjournment. Jacob LJ held that the appellate question was whether the refusal was a case-management decision that no judge could reasonably have made, or was perverse. The medical letter was inadequate and did not say that the appellant was unfit to attend court. The judge was also entitled to consider the appellant’s history of failing to attend hearings, his selective attendance when seeking favourable orders, and evidence that he had been at work and was expected to be fit for work. The refusal was a sensible exercise of discretion.
2. Proceeding in the appellant’s absence. Once the adjournment had properly been refused, the judge was entitled to proceed with the committal trial. The findings of breach were not challenged on the basis of any defect in the trial itself.
3. Sentence. An immediate custodial sentence was justified. The breaches were repeated, deliberate and dishonest. The appellant had a substantial history of similar misconduct and had breached an injunction to which he had consented. A fine would have been ineffective in light of his unpaid judgments. The judge was entitled to conclude that a suspended sentence would not secure compliance and that a non-custodial sentence could not reflect the seriousness of the breaches. The risks included serious injury or loss of life to customers.
4. Length of sentence. Lloyd LJ stated that the appellate court should not substitute its own choice of sentence. Although nine months might have been on the high side, it was within the range of legitimate sentences and was not manifestly excessive. Stanley Burnton LJ agreed that the sentence was well within the range open to the judge.
5. The Court of Appeal also declined to adjourn its own hearing after the appellant left court following an alleged collapse. The matters requiring instructions concerned events after the lower court’s decision, and the Court concluded that continuing would not be unfair.

1. Court of Appeal (Civil Division): Both appeals dismissed. [2010] EWCA Civ 61.
2. Guildford County Court: HHJ Sleeman refused an adjournment, found breaches of the injunction proved and imposed nine months’ imprisonment.