The Governor & Company of the Bank of Ireland v Shah & Anor

A county court may transfer proceedings to the High Court ex parte under section 42(3) of the County Courts Act 1984. Failure to serve the transfer application or order, or an error in naming a party, ordinarily makes the order irregular rather than a nullity where the court had jurisdiction and the affected party could apply to set it aside. A party who knows of the order and does not challenge it cannot generally rely on the procedural defect to invalidate later enforcement. In contempt proceedings, the court must address the alleged contemnor’s need for legal representation and opportunity to make mitigation submissions. Failure to do so is a relevant sentencing factor, but does not automatically invalidate the committal. A custodial sentence should be no longer than necessary.

The Bank obtained possession orders against Jeetan Shah concerning a mortgaged flat. Lawrence Dubash, who occupied the property, was later joined as a defendant and ordered to give possession. The proceedings were transferred from the county court to the High Court, and Dubash repeatedly re-entered the property after eviction.

He was committed for contempt for three months and, after re-entry following his release, for a further ten months by Her Honour Judge Taylor. He appealed against the latter sentence, arguing principally that the transfer order was a nullity because the transfer application and order had not been properly served, and that the April 2014 order was unreliable. The appeal also raised whether the committal process sufficiently addressed representation and mitigation.

1. Appeal and transfer. The court extended time for appealing because the delay was short, the appellant’s liberty was at stake, and the Bank suffered no material prejudice. The transfer order was valid. Section 42(3) of the County Courts Act 1984 permitted an order under section 42 to be made on the court’s own motion or on a party’s application, which contemplated an ex parte order. CPR 30.4 contemplated notice of the transfer being given after the order, rather than requiring prior service of the transfer application.
2. Failure to serve the order, and the failure to name Dubash as a defendant, did not make the order a nullity. The proceedings transferred were proceedings to which he had already become a party. The Bank served the order, and Dubash could have applied within the permitted period to set it aside, vary it or stay it. The distinction between nullity and irregularity was considered in Craig v Kanssen [1943] 1 KB 256 and MacFoy v Unite African Company Ltd [1962] AC 152. The present defect did not go to jurisdiction or constitute a fundamental vice.
3. The court also rejected the challenges to the April 2014 order. The sealed order was authentic, it was in the court file, and it had been served. The manuscript addition of Dubash’s name in the defendant box sufficiently identified him as the added defendant. In any event, the committal courts could have exercised the relevant county-court and High Court jurisdiction even if the May transfer order had been invalid.
4. Representation and sentence. Brown v London Borough of Haringey was treated as establishing that contempt proceedings engaging liberty have a quasi-criminal character and that the court should make a proper enquiry into legal representation, public funding and the opportunity for mitigation. The decision did not require every committal to be set aside where that enquiry was inadequate. The omission was a sentencing factor.
5. The contempt was serious and repeated, but the ten-month sentence was excessive in the circumstances. Taking account of the absence of apparent consideration of representation or mitigation, the need for a sentence no longer than necessary, the relationship with the earlier three-month sentence, the appellant’s personal circumstances and the Bank’s subsequent sale of the property, the court ordered his immediate release.

• Court of Appeal (Civil Division): [2015] EWCA Civ 1018. Appeal against the ten-month committal sentence; time extended and immediate release ordered.
• High Court, Queen’s Bench Division: Her Honour Judge Taylor committed the appellant for contempt and imposed ten months’ imprisonment on 12 March 2015.