Factual and Procedural Background
The appeals arise from various orders made by HH Judge Clarke in the Oxford County Court during a possession trial concerning a first floor flat at 42A Oak End Way, Gerrards Cross ("the Flat"). The appellants are the claimant, Company A, and a third party who is the sole director and shareholder of Company A ("Appellant Director"). The defendant and respondent is the tenant of the Flat since approximately 1989 under an assured or statutory tenancy governed by the Rent Act 1977.
The dispute involves whether the tenancy includes use of a garden and parking space. The tenant also rents neighbouring garages from a different landlord and claims a right of way along an access road owned by Company A.
Company A acquired most of the parade of shops, including the Flat, in 2014 intending to redevelop the site into residential apartments. Planning permission was obtained, and development financing was secured, including a loan facility from Company B, guaranteed personally by the Appellant Director.
The tenant declined to vacate the Flat, prompting Company A to commence possession proceedings under the Housing Act 1988 and alternatively the Rent Act 1977, claiming suitable alternative accommodation would be available. The tenant disputes the suitability of the proposed alternative accommodation and challenges the risk of development completion.
The tenant counterclaimed for breach of repairing obligations and alleged obstruction of his right of way and trespass by Company A and the Appellant Director.
The trial began on 25 April 2018. During the trial, the judge gave the Appellant Director repeated warnings not to discuss his evidence during adjournments. Despite this, the Appellant Director communicated by email and spoke to a third party adviser linked to Company B overnight, which the judge found to be contempt of court.
The judge remanded the Appellant Director in custody overnight pending a committal hearing, struck out Company A's claim and defence to the counterclaim, and ordered costs against Company A and the Appellant Director. Appeals were lodged against these orders.
Legal Issues Presented
- Whether the warnings given by the trial judge to the Appellant Director not to discuss his evidence during adjournments amounted to a court order capable of being breached and constituting contempt.
- The scope and jurisdiction of the County Court to deal with alleged contempts, including the appropriate procedures for committal for contempt.
- Whether the Appellant Director’s communications during adjournments constituted contempt of court and justified the committal order and remand in custody.
- Whether the judge was justified in striking out the claim and defence to counterclaim on grounds of abuse of process and the impact of the alleged contempt on the fairness of the trial.
- The procedural fairness and jurisdictional validity of the committal order and remand in custody made without prior hearing or opportunity for explanation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Manchester County Council v McCann [1999] QB 1214 |
Clarification of County Court's jurisdiction under s.118 County Courts Act 1984 to punish criminal contempt in the face of the court. |
Used to explain the limited jurisdiction of the County Court to deal with contempts in the face of the court and the statutory framework governing such contempts. |
| Balogh v Crown Court at St Albans [1975] QB 73 |
Guidance on when a judge should act on his own motion for contempt, emphasizing urgency and propriety. |
Cited to highlight the need for caution and that judges should not act precipitously or appear both prosecutor and judge. |
| DPP v Channel Four Television Co Ltd [1993] 2 AER 517 |
Criteria for a judge acting of own motion in contempt cases: clarity, urgency, impact on trial, and lack of alternative procedures. |
Applied to critique the trial judge’s handling of the alleged contempt, emphasizing the need for measured and procedurally fair responses. |
| Summers v Fairclough Homes Ltd [2012] UKSC 26 |
Principles governing the exercise of the court’s power to strike out claims at trial conclusion, emphasizing rarity and proportionality. |
Referenced to frame the exceptional nature of striking out a claim at trial and the need for proportionality in the exercise of that power. |
| Masood v Zahoor [2010] 1 WLR 746 |
Authority on striking out claims during trial for misconduct that jeopardizes fair trial. |
Used to compare the present case with previous cases where fraud and misconduct justified striking out claims. |
| Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 |
Principles on striking out proceedings due to misconduct such as forgery and false evidence that frustrate fair trial. |
Applied to assess whether the misconduct in the present case warranted striking out. |
| Malgar Ltd v R E Leach Engineering Ltd [2000] FSR 393 |
Contempt for making false statements verified by statement of truth without honest belief. |
Cited as an example of contempt involving interference with the administration of justice. |
| A-G v Butterworth [1963] 1 QB 696 |
Contempt for interfering with witnesses to deter or change evidence. |
Referenced to illustrate forms of contempt involving interference with evidence. |
| A (A Minor) (Contempt of Court: Committal of Court's own Motion) [1999] Fam. 263 |
Jurisdiction of County Court to commit for breach of court orders ex mero motu. |
Used to explain procedural safeguards and jurisdictional limits on committal orders by the court itself. |
| Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) |
Purpose of discovery rules to secure fair trial and consequences of misconduct. |
Quoted in Arrow Nominees judgment to underpin principles on striking out claims for misconduct. |
Court's Reasoning and Analysis
The court carefully analysed the nature and effect of the warnings given by the trial judge to the Appellant Director regarding discussing his evidence during adjournments. It concluded that such warnings did not amount to a formal court order capable of being breached, and thus could not support committal for contempt on that basis. The court found no proper basis for treating the sending of emails as contempt, especially since they were not responded to and did not constitute discussion of evidence.
Regarding the conversation with the third party adviser, the court held that while the Appellant Director should not have engaged in this communication, it amounted to seeking opinion evidence rather than fabricating or falsifying evidence. The trial judge’s conclusion that all of the Appellant Director’s evidence was unreliable due to this contact was unjustified and an overreaction.
The court further noted that the trial judge had failed to provide procedural fairness in dealing with the alleged contempt. The judge acted summarily without allowing the Appellant Director an opportunity to explain himself, apologise, or obtain legal advice, contrary to the procedural safeguards outlined in CPR 81 and relevant case law. The judge’s decision to remand the Appellant Director in custody overnight before any hearing on committal was disproportionate and a misuse of judicial power.
On the strike out application, the court acknowledged the power to strike out claims for abuse of process but emphasized this should be a last resort, exercised only in very exceptional circumstances. The judge’s conclusion that a fair trial was impossible was based on flawed reasoning, including treating all evidence as tainted and prematurely assessing the merits of the possession claim. The court found that the situation was manageable if proper procedural steps had been followed.
Consequently, the court held that the committal orders and the strike out orders were unjustified and should be set aside. The case was to be transferred for a new trial before a different judge.
Holding and Implications
The court ALLOWED the appeals against the committal orders and the strike out orders.
The committal orders against the Appellant Director were set aside on grounds of lack of jurisdiction and procedural unfairness. The strike out orders dismissing Company A's claim and defence to the counterclaim were also set aside as unjustified and premature.
The case was ordered to be transferred to another court for directions and a new trial before a different judge.
No new legal precedent was established; the decision primarily reinforces existing principles regarding the necessity of procedural fairness in contempt proceedings and the exceptional nature of striking out claims mid-trial.