Emambux v Innisfree Housing Association Ltd

An appellate court may refuse fresh evidence where it was available at trial without satisfactory explanation, is incomplete or unreliable, or could not affect the outcome. Delay in filing an appeal must be justified by a good reason, particularly where the challenged order has substantially or wholly expired. The court further stated that a person remains bound by an injunction unless and until it is discharged. In committal proceedings, the criminal standard of proof applies to each alleged breach. Findings of fact and credibility will not be disturbed absent compelling reasons. A carefully reasoned sentence for contempt, taking account of aggravating and mitigating factors and treating immediate custody as a last resort, will not readily be interfered with.

The appellant appealed, out of time, against a suspended committal order made by HHJ Hellman after findings that he had breached an injunction granted under section 4 of the Anti-Social Behaviour Crime and Policing Act 2014. He also sought permission to appeal against a later order extending the injunction. The breaches concerned loud music and related conduct at a residential property. The appellant challenged the fairness of the proceedings, the standard of proof, the assessment of witness evidence and the sentence, and sought to adduce documents and video recordings concerning other events and proceedings.

The Court of Appeal first had to determine the fresh-evidence application and the applications for extensions of time before considering the merits.

1. Preliminary applications. The application to adduce fresh evidence was refused. Recordings available before the committal hearing were not supported by a satisfactory explanation for their omission. Other recordings were irrelevant. Isolated extracts from larger police, social-services and court documents could not be treated as credible evidence, and the material could not realistically affect the appeal. None of it satisfied the test in Ladd v Marshall [1954] EWCA Civ 1.
2. The applications for an extension of time were refused. The appellant had filed the notices more than eight months after the orders, gave no good reason for the delay, and by the hearing the suspended committal period and extended injunction had expired. The appeal and permission application therefore failed at the preliminary stage.
3. Obiter merits observations. Although it was strictly unnecessary to decide the merits, the court stated that the appellant remained bound by the injunction unless and until it was discharged. Complaints about its original making did not provide a ground of appeal against committal for breach.
4. The committal judge had correctly applied the criminal standard of proof to each allegation. He properly rejected the alleged threat of violence and the allegation of random shouting where the requisite standard was not met, but was sure of the remaining acts and their breaches of paragraph 4 of the injunction.
5. The assessment of credibility and the weight given to evidence were matters for the trial judge. The appellate court would not interfere without compelling reasons. HHJ Hellman had carefully analysed the principal witness’s animosity, exaggeration and other weaknesses before accepting her evidence in the context of all the evidence.
6. The sentence was carefully reasoned and balanced. The judge considered seriousness, sustained conduct, aggravating and mitigating factors, and the principle that immediate custody is a last resort. There was no unfairness in the process and no ground to interfere. Lord Justice Baker would dismiss the appeal and refuse permission to appeal against the extension order; Lord Justice Bean agreed.

• Court of Appeal (Civil Division) — refused fresh evidence and extensions of time, dismissed the appeal against the suspended committal order, and refused permission to appeal against the order extending the injunction.
• Central London County Court — HHJ Hellman found breaches of the injunction, made a suspended committal order on 6 September 2018, and extended the injunction on 10 September 2018.