John Bruce v Wychavon District Council

The Court of Appeal dismissed the appellant's challenge to HHJ Rawlings' findings and sentence for contempt of court. The court applied the CPR 39.3 test for setting aside an order made in the absence of a party (promptness, good reason, reasonable prospect of success) and the medical-evidence guidance in Levy v Ellis-Carr when assessing whether the appellant had a good reason for non-attendance. It held that the medical material did not demonstrate inability to attend or to instruct alternative counsel, and that the appellant lacked a realistic prospect of avoiding the findings given his admitted breach (allegation 4) and his credibility difficulties arising from prior breaches and findings of dishonesty. On sentencing the court applied the principles in Liverpool Victoria v Zafar: the custody threshold had been passed, immediate custody was necessary to punish and deter, and suspension was inappropriate given the history and risk to the public. The court rejected the argument that the Town and Country Planning Act 1990 fine regime (s.179(8)) made imprisonment manifestly excessive, observing that the injunction (s.55 TCPA definition of development) and repeated contempts made custodial sanction permissible under s.14 Contempt of Court Act 1981.

This was an appeal against a 12-month custodial sentence imposed for contempt of court and an earlier refusal to set aside a findings order made in the defendant's absence. The Council had obtained an injunction in 2016 restraining unlawful uses and requiring reinstatement of land; the owner, Mr Bruce, repeatedly breached it. There were three earlier committal findings (2016, 2017, 2018) with suspended and immediate sentences imposed previously. The fourth committal alleged further tipping, presence of shredded waste, recent burning, and additional waste in November 2022, the last allegation being admitted.

Procedural history to this court: HHJ Kelly gave case management directions in May 2023; the fourth committal trial was fixed for 9 August 2023 before HHJ Rawlings, who, in the defendant's absence, found the four allegations proved and gave permission to apply within seven days to set aside, requiring "full medical evidence" of incapacity to attend. The defendant applied and provided further medical material before the sentencing hearing on 21 September 2023. HHJ Rawlings refused to re-open the 9 August order and sentenced the defendant to 12 months' imprisonment.

The issues the Court of Appeal addressed were:

• whether the judge was wrong to refuse to set aside his 9 August 2023 order (applying CPR 39.3: promptness, good reason, reasonable prospect), and in particular whether the medical evidence satisfied the standard in Levy v Ellis-Carr; and
• whether the custodial sentence of 12 months was manifestly excessive, including the relevance of s.179(8) TCPA (fine for breach of enforcement notices) and the correct application of sentencing principles for contempt (Liverpool Victoria v Zafar).

The court held that the additional medical evidence did not meet the Ellis-Carr standard: there was no medical opinion linking the appellant's conditions to incapacity to attend trial, the contemporaneous materials (A&E note and GP sick note) were inconclusive, and the appellant had not arranged alternative representation or complied with earlier timetables for service of evidence. The judge was therefore entitled to refuse to re-open. On the merits, allegation 4 was admitted and serious; previous findings and broken promises undermined credibility on other allegations so there was no realistic prospect of success at a re-opened trial. On sentence, the court concluded the custody threshold had been crossed and that 12 months was not excessive: immediate custody was required to punish and deter and suspension was inappropriate given history and public/environmental risk. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the judge was entitled to refuse to set aside the order of 9 August 2023 because the additional medical evidence did not demonstrate that the appellant was incapable of attending court or instructing alternative counsel, and the appellant lacked a reasonable prospect of successfully disputing the findings. On sentencing, the court held the 12-month custodial term was neither wrong in principle nor manifestly excessive given the repeated contempts, prior sentences and promises, the seriousness of the admitted breach, and the need to punish and deter; suspension was inappropriate.

Original injunctive proceedings and costs order before Soole J (14 March 2016). Three earlier committal findings and sentences (4 November 2016; 9 August 2017; 24 October 2018) before HHJ Rawlings. Case management directions by HHJ Kelly on 9 May 2023. Fourth committal hearing and findings in the defendant's absence on 9 August 2023 before HHJ Rawlings; permission to apply to set aside within seven days. Sentencing hearing and refusal to re-open on 21 September 2023 before HHJ Rawlings. Appeal to Court of Appeal [2023] EWCA Civ 1389.