John Bruce v Wychavon District Council

A party seeking to set aside an order made after non-attendance at trial must act promptly, show a good reason for the absence and demonstrate a reasonable prospect of success. Medical evidence must clearly identify the condition and explain why it prevented participation. A standard sick note stating only that a person is unfit for work will not generally suffice, particularly where remote attendance may be possible.

When sentencing for contempt, the court considers culpability, imposes the least custodial term reflecting the contempt’s seriousness, and then considers suspension. A statutory fine for the underlying conduct does not restrict the available sentence for breach of an injunction. Repeated, deliberate breaches and persistent non-compliance may require immediate imprisonment.

The appellant owned land subject to planning enforcement notices and a 2016 injunction restricting unauthorised development and requiring compliance with those notices. Following three earlier findings of contempt, the respondent council brought a fourth committal application concerning the importation, storage and burning of waste.

HHJ Rawlings, sitting as a High Court Judge, heard the fourth committal trial in the appellant’s absence on 9 August 2023 and found four allegations proved. On 21 September 2023 he refused to reopen those findings and imposed 12 months’ immediate imprisonment.

The appellant challenged both the refusal to reopen and the sentence. The issues were whether he had shown a good medical reason for his absence and a reasonable prospect of successfully resisting the allegations, and whether imprisonment was manifestly excessive given that section 179(8) of the Town and Country Planning Act 1990 prescribed only a fine for breach of an enforcement notice.

1. Appeal dismissed. The refusal to reopen the findings was a case-management decision. An appellate court could interfere only if it fell outside the generous ambit within which reasonable decision-makers might disagree. The judge’s decision was well within that ambit.

2. All three requirements in rule 39.3(5) of the Civil Procedure Rules 1998 had to be satisfied. Although the application was prompt, the appellant had not shown a good reason for his absence. The additional material did not contain a medical practitioner’s reasoned opinion identifying why suspected stable angina or raised blood pressure prevented participation in the trial. A judge should not be expected to infer incapacity from medical documents which omit that critical conclusion. A pro-forma certificate stating that a person is unfit for work will not generally establish inability to attend court, especially where participation by video link may be possible.

3. The judge was also entitled to find no reasonable prospect of successfully resisting the contempt allegations. The most serious allegation was admitted. No signed witness statement setting out the proposed defences was before the judge, despite repeated opportunities to provide one. The proposed factual explanations depended heavily upon the appellant’s credibility and did not realistically undermine the council’s evidence or the admitted breach.

4. The fine prescribed by section 179(8) of the Town and Country Planning Act 1990 for breach of an enforcement notice did not make imprisonment for contempt excessive. The relevant misconduct was repeated breach of a court injunction. Section 14 of the Contempt of Court Act 1981 permitted imprisonment for up to two years, and the enforcement-notice fine regime had ceased to be material after the persistent injunction breaches.

5. Applying Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392, the custody threshold was plainly crossed. Twelve months was no more than the least term properly reflecting the fourth set of breaches, the escalating offending, previous imprisonment, lies and broken promises. Suspension was inappropriate because there was no realistic prospect of rehabilitation or strong personal mitigation, while the conduct endangered the public and environment and demonstrated a serious history of non-compliance.

6. Newey LJ agreed in the result but reserved his view on whether a contemnor could give oral evidence without previously serving written evidence. That issue had not been fully argued and was unnecessary to the appeal’s disposal.

1. Court of Appeal (Civil Division): The court dismissed the appeal and upheld both the refusal to reopen the contempt findings and the sentence of 12 months’ immediate imprisonment: [2023] EWCA Civ 1389.

2. High Court, Birmingham District Registry: On 9 August 2023 HHJ Rawlings, sitting as a High Court Judge, found four allegations of contempt proved in the appellant’s absence. On 21 September 2023 he refused to reopen that order and sentenced the appellant to 12 months’ imprisonment.