ISIS Housing Cooperative v Evelyn

In civil contempt proceedings, a committal order should be served in accordance with Rule 81.30 of the Civil Procedure Rules 1998. However, failure to serve it does not invalidate the arrest or committal where the contemnor suffers no injustice or prejudice. A court may proceed in the contemnor’s absence where proper notice was given and there was no good reason for non-attendance. A contemnor must comply with court orders unless they are successfully appealed or set aside. Repeated deliberate defiance may justify a substantial custodial sentence.

The appellant applied out of time for permission to appeal against a 14-month sentence for contempt of court imposed by HHJ Saffman in the Leeds County Court on 4 July 2018. The judge had found four breaches of earlier orders, including orders requiring the appellant to vacate property and restraining entry onto the respondent’s land.

The appellant had not attended either the hearing at which contempt was found or the sentencing hearing, although he had been notified of both. The central issue was whether the failure to serve the sealed committal order before execution of the warrant invalidated the arrest and committal.

Males LJ gave the judgment, with which Asplin LJ agreed. The necessary extension of time was granted, but the appeal was dismissed.

1. Proceeding in the appellant’s absence. The appellant had been properly notified of both hearings, had been warned that imprisonment might follow, and had chosen not to attend. There was no direct clash of dates or other good reason preventing attendance. The judge was therefore entitled to proceed in his absence. The findings of contempt were unimpeachable and the evidence against him was overwhelming.
2. Service of the committal order. Rule 81.30 of the Civil Procedure Rules 1998 required the committal order to be served unless the court ordered otherwise. No such order had been made, so the order ought to have been served. Applying In re Scriven [2004] EWCA Civ 683, and the principle stated in Nicholls v Nicholls [1997] 1 WLR 326, procedural non-compliance did not invalidate the arrest or committal where it caused no injustice or prejudice.
3. Prejudice. The appellant knew the allegations, the date and purpose of the sentencing hearing, and that imprisonment was possible. He knew by September 2018 that a warrant had been issued, but took no steps to appeal, obtain further information, or purge his contempt. Service of the order would have made no difference to his conduct. The failure of service was therefore technical and did not invalidate the committal.
4. Underlying orders and sentence. The appellant could not reopen the finally determined construction of the right of way in contempt proceedings. He was required to comply with the injunctions unless they were successfully appealed or set aside. In light of his repeated defiance over several years, the 14-month concurrent sentence was not excessive and might be regarded as lenient.

Order: Appeal dismissed.

1. Court of Appeal (Civil Division) On 20 June 2019, the court granted an extension of time because of uncertainty about service of the committal order, but dismissed the appeal.
2. Leeds County Court HHJ Saffman found the appellant in contempt on 6 June 2018 and sentenced him on 4 July 2018 to 14 months’ imprisonment.
3. Earlier Court of Appeal proceedings An earlier appeal concerning breaches of the same injunctions was dismissed in Evelyn v Isis [2017] EWCA Civ 130.