Tonna v Katerji

A mandatory order which requires an act but fixes no time for compliance cannot ordinarily support a committal application for breach. The court should first specify a compliance period.

Committal is a serious remedy and should be treated as a last resort. Where a committal application is fatally defective and fails, the successful respondent would ordinarily receive its costs.

An appellate court may interfere with a costs discretion where the lower court erred in principle, relied on findings unsupported by the material, or failed to balance the relevant factors fairly.

Mr Katerji obtained an injunction against Mr Tonna in neighbour-dispute proceedings. The mandatory terms required remedial works but did not specify a time for compliance.

Mr Katerji later applied to commit Mr Tonna for breach. At the hearing, the application was accepted to be defective because no time for compliance had been fixed. The County Court nevertheless made no order for the costs of the committal application, instead making attendance costs costs in the case, relying on Mr Tonna’s failure to engage with the earlier proceedings.

Mr Tonna appealed against that costs order. The central issues were whether the judge had erred in exercising the costs discretion and what order should follow from the failed committal application.

1. Appeal allowed. The order concerning the costs of the committal application was set aside. Mr Katerji was ordered to pay Mr Tonna’s costs of successfully resisting it.
2. A mandatory order which fixes no time for compliance is not inherently defective, but it cannot ordinarily found a committal application for breach at that stage. The court must first insert a time for compliance. Only after failure to comply within that period can committal be considered.
3. Committal is a serious procedural step with potentially serious consequences. It should be used only after full consideration and as a last resort. Where an application is fatally defective and fails for that reason, the ordinary starting point is that costs follow the event.
4. The approach in Islam v Ali [2003] EWCA Civ 612 was applied. The appellate court may intervene where the judge erred in principle, left out of account a relevant feature, took account of an irrelevant feature, or failed fairly to balance the factors.
5. The County Court judge had made adverse findings about blame and procedural conduct without sufficient material. Those matters were not causally connected to the costs incurred in successfully resisting the committal application. The judge therefore erred in principle and failed to balance the factors fairly.
6. The appeal court declined to speculate about the underlying dispute or procedural history. It treated the committal application as a free-standing matter and made no deduction for the fact that directions had also been agreed at the hearing.

• High Court (Chancery Division): Allowed the appeal, set aside the County Court costs order, and ordered Mr Katerji to pay Mr Tonna’s costs of the committal application.
• County Court at Guildford: On 14 June 2018, made no order for the costs of the committal application, save that attendance costs for that day were costs in the case.