Ketley v Brent & Anor

A judicial order must be obeyed unless and until it is set aside. An appeal from a committal order cannot be used to challenge earlier orders which remain effective and are no longer open to appeal.

A claim under Human Rights Act 1998 section 7 does not create a freestanding route to sue a High Court judge for a judicial act. The statutory route is ordinarily an appeal, and judicial immunity remains preserved.

Although committal proceedings are criminal for Article 6 purposes, that classification does not make the Criminal Procedure Rules 2010 applicable in domestic law. An appellate court will interfere with refusal of an adjournment only for established discretionary error. Stress alone will seldom justify adjournment.

Patent agents obtained charging orders over Mr Brent’s home for unpaid fees and expenses. After an order for sale and an order requiring him to give possession, Mr Brent remained in occupation.

On 10 March 2011, Morgan J refused Mr Brent’s applications for recusal and an adjournment. He found Mr Brent in contempt for failing to give possession and imposed an eight-week committal order, suspended on condition that Mr Brent vacated by a specified date.

Mr Brent appealed the committal order. He sought to challenge earlier orders through alleged human-rights violations, and contended that the hearing should have been adjourned because of illness and lack of representation. The central issues were whether those matters undermined the contempt finding or Morgan J’s exercise of discretion.

1. Appeal dismissed. Lewison LJ, with whom Longmore LJ agreed, held that the earlier orders requiring possession remained binding. Mr Brent could not use an appeal from committal to bypass repeated refusals of permission to appeal against those orders.

2. A claim under section 7 of the Human Rights Act 1998 concerning a judicial act did not provide a freestanding claim against High Court judges. Section 9 directed such a challenge to an appeal or other prescribed route, while section 9(2) preserved the principle of judicial immunity. In any event, one High Court judge could not set aside another High Court judge’s order. The operative route was appeal, which was unavailable in respect of the underlying orders.

3. Following Isaacs v Robertson [1985] AC 97 and Hadkinson v Hadkinson [1952] P 285, a person bound by an order of a competent court must comply unless it is discharged, even if it is thought irregular or void. Mr Brent had admittedly not complied, so he was liable to committal for contempt.

4. Committal is criminal for Article 6 purposes, but that does not import the domestic criminal procedural regime. The court followed Daltel Europe Ltd. & Ors v Makki & Ors [2006] 1 WLR 2704: the civil procedural rules applied. Article 6 did not entitle a defendant to obtain a last-minute change of legal representation and thereby compel an adjournment.

5. Morgan J’s refusal to adjourn was an impeccable exercise of discretion. The medical evidence supported his conclusion that Mr Brent was physically fit to attend, though vulnerable to litigation-related stress. Such stress would recur on an adjourned date. The evidence had also been assessed in accordance with the approach approved in Levi v Ellis-Carr [2012] EWHC 63 (Ch).

• Court of Appeal (Civil Division): Dismissed Mr Brent’s appeal from Morgan J’s committal order: [2012] EWCA Civ 324.

• High Court, Chancery Division (Morgan J): On 10 March 2011, found Mr Brent in contempt for failing to give possession and imposed an eight-week committal order, suspended subject to compliance.

• High Court: Vos J had previously made an order for sale and required Mr Brent to give possession of the charged property.