Berger v Bell

On an appeal against committal for contempt, an appellate court will rarely interfere with findings based on the trial judge’s assessment of oral evidence, particularly where the contemnor made relevant admissions. In committal proceedings, strict procedural requirements must be observed, including informing an unrepresented defendant of the right to silence and offering an opportunity to obtain representation. For repeated breaches, immediate custody may be appropriate where the contemnor remains defiant and indicates that further breaches will continue. The sentencing court must consider culpability, harm, mitigation, the need to secure compliance and the totality of the sentence.

The parties were former long-term partners who jointly owned a former family home. The respondent obtained an order under the Trustee of Land and Appointments of Trustees Act 1996 for the property to be sold. After the appellant failed to cooperate, the County Court made injunctive orders requiring him to leave and prohibiting interference with the sale.

Following findings that he had breached those orders, including by residing at the property after consent had been revoked, the appellant was committed to prison for eight months. He appealed against the committal order, raising delay, procedural fairness, the factual findings and sentence. The central issues were whether time should be extended and whether the committal and sentence were justified.

The court granted an extension of time for filing the appeal notice and dismissed the appeal. It made no order as to costs.

1. Procedural safeguards. The committal hearing had been conducted with due regard to the strict procedural requirements. The appellant had been offered the opportunity to obtain legal representation and had been advised of his right to silence and his right not to incriminate himself. The accuracy of the lower judge’s account was not challenged.
2. Factual findings. The findings of breach were based on the evidence heard by the trial judge and, in part, on admissions made by the appellant. The appellant’s submissions on appeal did not establish that the findings were wrong.
3. Assessment of consent. The lower judge was entitled to find that the written consent was ambiguous in relation to the appellant’s earlier attendance, but that the respondent had clearly revoked consent on 9 June. An appeal court will rarely interfere with such an assessment of evidence, and no proper basis for intervention existed.
4. Sentence. The appellant’s persistent breaches and defiant refusal to accept the underlying order, together with his indication that he would continue to breach it, justified immediate custody. The lower judge had considered culpability, harm, mitigation, the individual breaches and totality. Suspension would not have operated as a deterrent. Baker LJ regarded the eight-month sentence as entirely appropriate, and Bean LJ agreed.

• Court of Appeal (Civil Division): On 11 February 2020, granted an extension of time for lodging the notice of appeal, dismissed the appeal and made no order as to costs: [2020] EWCA Civ 544.
• Kingston-upon-Hull County Court: On 1 November 2019, made a committal order for eight months’ immediate imprisonment for breaches of injunctive orders.
• Kingston-upon-Hull County Court: At a hearing in February 2019, ordered the jointly owned property to be sold and the proceeds divided equally, and summarily assessed costs against the appellant.