ZOS, R (on the application of) v Secretary of State for the Home Department

A mandatory order requiring a public authority to provide accommodation must be obeyed by the stipulated date unless set aside or varied beforehand. A pending application to vary the order does not excuse non-compliance. Where compliance is likely to prove impossible, the authority should apply promptly, supported by evidence, so that the court can rescind the existing order and make an appropriate replacement order. Relief from sanctions under CPR 3.9 is not the correct framework for breach of a mandatory injunction. Breach may found contempt without proof of an intention to breach, although intention and the reasons for default may affect penalty and proportionality. The Administrative Court’s urgent procedure must be reserved for genuinely urgent applications.

The claimant, an asylum seeker, was accommodated with her two young children under section 95 of the Immigration and Asylum Act 1999. Her severely disabled son required self-contained, wheelchair-accessible accommodation in Southwark. Following judicial review proceedings, the Secretary of State consented to a mandatory order dated 13 July 2022 requiring suitable accommodation within fourteen days.

The Secretary of State failed to comply, applied late to vary the order, repeatedly failed to comply with further procedural orders, and ultimately accepted that the accommodation provided was inadequate. The claimant sought directions for contempt proceedings. The issues included the appropriate mechanism for extending the time for compliance, whether relief from sanctions applied, the effect of breach of a mandatory order, and whether contempt proceedings should be initiated.

1. Mandatory order. The order of 13 July 2022 was a final mandatory order made by consent. The Secretary of State remained in breach after the deadline expired. The fact that compliance had become difficult, or that an application to vary had been made, did not suspend the obligation to comply.
2. Proper procedure. The Secretary of State should have returned to the court before the deadline, explaining with evidence why compliance was impossible or likely to be impossible and inviting the court to rescind the existing order and make an appropriate new order. A new order requiring accommodation by 1 December 2022 would not expunge the earlier breach. It constituted a separate requirement superseding the earlier order.
3. Relief from sanctions. CPR 3.9 was inapplicable. The case did not concern a procedural sanction or the potential termination of proceedings. The court instead had to exercise its general jurisdiction and discretion, taking account of the importance of the order and the seriousness of the breach.
4. Urgent applications. The “urgents” procedure was wrongly invoked. It is reserved for applications genuinely requiring treatment out of the ordinary court process. Those seeking to use it must satisfy themselves that the case is truly urgent and comply precisely with the safeguards governing the procedure. Abuse may attract an appropriate sanction. The error here was used to address a time difficulty that was substantially of the Defendant’s own making.
5. Contempt. Breach of a mandatory injunction may found contempt proceedings against a Minister. Deliberate intention to breach is unnecessary. Once knowledge of the order and the relevant acts or omissions are established, the breach may be proved as a matter of fact and law. Intention, dependence on third parties, apology and explanation may bear on penalty and proportionality, but do not provide a defence. Not every breach requires contempt proceedings. In this case, the public rebuke, the Defendant’s apology and the evidence provided made further directions proportionate and unnecessary. The claim for costs was met by the Defendant’s offer to pay costs on the indemnity basis.

The judgment arose from enforcement of a mandatory order made in the claimant’s judicial review proceedings on 13 July 2022. No appellate history is stated.