Graham Michael Wildin v Forest of Dean District Council

An application to commit for breach of a mandatory order need not plead expressly that the respondent could comply. Intentional non-compliance in that sense is inherent in the allegation of contempt.

The applicant must prove every element beyond reasonable doubt. A respondent relying on inability to pay bears an evidential burden and should provide full disclosure, ordinarily supported by sworn evidence. The court may draw secure inferences from inadequate evidence about matters within the respondent’s exclusive knowledge.

An order must tell the respondent clearly what must be done. A cross-reference contrary to good drafting practice does not preclude committal where the respondent knew the order’s requirements. Distinct obligations may be enforced separately where the order makes them severable.

The appellant constructed a large building in breach of planning control and continued despite an enforcement notice. The respondent council subsequently obtained an injunction under section 187B of the Town and Country Planning Act 1990, reflected in the High Court’s decision [2018] EWHC 2811 (QB). The injunction required demolition and several preliminary works, including soft-stripping the building and decommissioning its services.

In 2021 the High Court found that the appellant had disobeyed severable requirements of the injunction. It imposed six weeks’ imprisonment, suspended for 12 months on condition that specified works were completed within 18 weeks. The appellant challenged the findings and sentence, arguing principally that ability to comply had neither been pleaded nor proved, that the injunction was insufficiently precise and that its obligations were interdependent.

1. Appeal dismissed. The council did not have to plead expressly that the appellant was able to comply. An allegation that specified non-compliance constitutes contempt inherently alleges intentional non-compliance in that sense. The family authorities relied upon did not establish a pleading requirement of the kind asserted.

2. The applicant must prove every element of contempt beyond reasonable doubt. Where a respondent asserts that financial inability prevented compliance, an evidential burden rests on the respondent because the relevant facts are ordinarily within that person’s exclusive knowledge. The court will expect full disclosure and probably sworn evidence before giving such an assertion weight. The ultimate burden and criminal standard remain with the applicant.

3. The appellant’s affidavit was admissible. Under rule 32.7(1) of the Civil Procedure Rules 1998, it would have become unusable without permission if the council had obtained permission to cross-examine and the appellant had then refused to attend. That did not occur. Once the appellant relied upon the affidavit, the council could also use it.

4. The judge could be sure from the appellant’s significant assets, incomplete disclosure and dealings with those assets that he could afford the limited works. Exact evidence of their cost was unnecessary. The appellant’s inadequate disclosure permitted secure inferences about matters on which he could readily have provided full evidence.

5. The injunction imposed simple, distinct and severable obligations. Nothing made the preliminary works conditional on the appellant’s ability to complete the demolition. The pleaded particulars gave fair notice that each specified breach was alleged, so findings on some particulars after others failed caused no unfairness.

6. An order enforceable by committal must be clear enough for the respondent to know in fact what must be done. Although incorporation of another document may be poor drafting practice, it did not invalidate this injunction. The appellant knew what the incorporated requirements meant, and the judge could dispense with re-service under rule 81.5 of the Civil Procedure Rules 1998. His own partial soft-stripping demonstrated his understanding.

7. The judge was entitled to suspend the sentence subject to detailed conditions. Appellate interference required an error of principle or an exercise of discretion unavailable to a reasonable judge. The 12-month suspension could extend beyond the 18-week compliance period so that the sentence remained an effective means of securing compliance.

1. Court of Appeal (Civil Division): Dismissed the appeal against the findings of contempt and the suspended sentence: [2021] EWCA Civ 1610.
2. High Court: In June 2021 HHJ Jarman QC found two pleaded contempts proved and imposed six weeks’ imprisonment, suspended for 12 months subject to completion of specified works within 18 weeks.
3. Court of Appeal: Irwin LJ refused permission on the papers in November 2019 to appeal against the injunction.
4. High Court: HHJ Jarman QC granted the council an injunction under section 187B of the Town and Country Planning Act 1990: [2018] EWHC 2811 (QB).