Re M

CACV000020/1989

Headnote:    Matrimonial: committal for contempt: breach of molestation order: District Court Rules: District Court Rules: RSC 0.52: Form 85: strict compliance whth the Rules required

BETWEEN

IN RE: M

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Coram: Silke, V.-P., Power & penlington, JJ.A.

Date of Hearing: 1 February 1989

Date of Judgment: 1 February 1989

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J U D G M E N T

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Silke, V.P.:

1. This is an appeal brought by the Respondent hushand-"the Respondent"-in relation to an order made on 30th January upon the Petitioner wife's-"the Petitioner"-application committing him to prison for three months for contempt of Court. The Notice seeks that the service of this appeal be abridged and that the said order be set aside and/or varied in such manner as this Court hall deem just.

2. Shortly the history of the matter is this The parties were married in 1976. On 30th September 1988, the petitioner wife filed a petition for divorce on the ground of irretrievable breakdown and behaviour.

3. There are three children of the marriage. A son born in 1977 and daughters born in 1981 and 1982 respectively. The Petitoner asked for custody of all three to be given to her. Access was to be by agreement.

4. The usual documents were filed with the Petition including a Notice of Intention to proceed with an Application for Ancilliary Relief and there was also an application for a restraining order. This last sought to restrain the Respondent in relation to the wife and the children. An ex parte order was made on this application, a power of arrest was attached and the injunction was to continue until the hearing of a summons inter partes which was directed to be issued.

5. That summons was issued on the same day and the hearing inter partes took place on 20th Sentember 1988. An order in term of the summons was made.

6. The Respondent was absent for reasons which, in the light of the view we take of this appeal we need not go into.

7. On 30th September 1988 the Respondent filed his acknowledpment of service indicating an intention, to defend. On 3rd Octoher1988 he, as we understand it, beingrepresented by solicitors for the first time, applied to have the order of 20th September 1988 discharged.

8. This application was heard on 6th October 1988 having been originally set down for the 4th of October when it was adjourned. An order was made by his Honour Judge Pang directing undertakings having been given that the time for service of the summons be abridged and that the order made on 20th September 1989 be discharged. A further order was then made in these terms:

"The Respondent he restrained by himself, his servants or agents from molesting, assaulting or otherwise lnterfering with the Petitioner until further order."

9. The order of Judge Pang went on to award the care and control of the children on an interim basis to the Petitioner and directions were given as to access by the Respondent.

10. The Petition proceeded in the normal way and an affidavit of means was filed on 1st November 1988 Then on 21st December 1988 there was a summons to vary the order of 20th September to the extent that the custody or care and control of the son be awarded to the Respondent.

11. Notice of hearing of the petition was issued by the Court on 22nd December 1988. This petition is to be heard on 3rd February, two days from now.

12. The variation summons was heard on 3rd January 1989 and the variation requested granted. A further and different order as to access by the Respondent to the daughters was made. Social Welfare and child psychologist Reports were directed to be provided.

13. The next step was an application by the petitioner for leave to apply for the committal of the Reapondent Leave was granted.

14. Mr. Rodway raises the issue of proper compliance with the relevant rules in relation to that application with which we shall deal in a moment.

15. On 12th January 1989 as a result of that leave, a Notice of Application was issued for an order to commit the Respondent

"to prison for having disobey the Order made by His Honour Judge Pang on the 6th of October restraining you by yourself your servants or agents from molesting, assaulting or otherwise interfering with the petitioner until further Order ..."

It set out matters as being the reason for the application:

"(1) by on numerous occasions since the 13th of September 1988 to the 9th of January 1989 molesting the Petitioner making numerous telephone calls to her (2) and further on Saturday, the 7th of January 1989 by assaulting the Petitioner at the KCC threatening the Petitioner and spitting at her and (3) further details of the Respondent's continuing disobedience of the Order are contained in the Affidavit filed and attached here with."

16. This cast a "catchall" as Mr. Westbrook for the Petitioner describes it.

17. This application was heard before His Honour Judge Pang on 30th January, last Monday. As a result of his having found contempt the Respondent was taken into the custody of the Commissioner, of Correctional Services.

18. We have heard various strictures upon the procedures in the lower Court when the application was heard. We think it is sufficient to say of them that it is unclear whether or not the application was heard In open Court as it normally should have been. We, however are again not directly concerned with that.

19. Further, criticism is also leveled at what is said to be the cursory manner in which the solicitors then representing the Parties dealt with the matter. In fairness to them, though the hearing took a remarkably short time, neither expected a custody order to be made there being the interests of the children and other matters to he considered.

20. There were before the trial judge affirmations from both the Petitioner and the Respondent. The Petitioner gave oral evidence and as cross-examined. The, Respondent did not give evidence. The judge was therefore left with the affirmations and the oral evidence of the Petitioner upon which to make his mind as to whether the breaches alleged had been proved. As we have said, he found they were.

21. The judge gave short oral reasons in Court and later it would appear wrote a full judgment. So we have before us an unchecked note taken by counsel of that which the judgment in Court and the full judgment in typescript. If there were indeed two judgments and we note that counsel's version of that which the judge said in, we hope, open Court differs from the contents of the written judgment this practice is not one to be encouraged. It is obligatory even if the proceedings were in Private, to give the judgment itself in open Court anti to detail the particulars of the contempt found.

22. The issue with which we are now concerned, is and we accept this, technical: whether or not Order 52 rule 2(2) of the Rules of Supreme Court was complied with.

23. We would interpolate here that, by virtue of Rule 9 to the District Court Civil Procedure General Rules which states as follows:

"Subject to the provision of the Ordinance and of these riles, the Rules of the Supreme Court as for the time being enacted and save as it there in may otherwise be provided shall apply to proceedings, in the Court as they apply to proceeding in the High Court with such modifications as are necessary for that purpose."

and its sub-rule (2) which reads:

"Those parts of the Rules of the Supreme Court which are listed in the Schedule shall not apply the court or to any proceedings in the Court."

24. The parties are in agreement on this point. and Order 52 is not being an inapplicable rule, the Rules of the Supreme Court do apply.

25. The first issue is non-compliance with Order 52 Rule 2(2) This reads:

"An application for such leave must be made ex parte to a judge and must be supported by a statement setting out the name and description of the Applicant, the name and description in address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to he filed before the application is made, verifying the facts relied on."

26. The second issue, and the one which mainly concerns. is the form of perfected Order drawn up, as we understand it, this morning and in some haste; what appears on its face and does it conform with Form 85.

27. It refers first of all to hearing the solicitors for the Petitioner and for the Respondent to the reading of the affirmation of the Petitioner affirmed on 12th January and of the affirmation of the Respondent of 25th January and to hearing the oral evidence of the Petitioner. It goes on:

"The Court is satisfied having considered the facts disclosed by the evidence that the Respondent has been guilty of contempt of this Court by disobeying the Order dated the of October 1988."

There was then ordered the committal of the Respondent for "the above contempt" for a period of three months.

28. As to the application for leave. This was made ex parte to a judge But it has been submitted that it was not supported by a statement in the sense of a separate document setting out the name and description of the Applicant, the name, description and address of the Respondent and the grounds upon which the committal was sought Mr. Westbrook has urged that the purpose of the rule is that knowledge be provided to this Court and to the person whose committal is sought as to what person asked for his committal and why. He further submits that this requirement was fully complied with by the affirmations and by the contents of the application for leave itself

29. For myself, I would doubt compliance with rlue 2(2). But there is a difference of opinion amongst us on this particular aspect and, as it does not form the main reason why we have come to the conclusions which we have, I would prefer to leave the matter open.

30. As to the order and its form. Form No.85 in the Rules is headed "Order of Committal" It requires that the matters found as contempt to be stated. The White Book, and our Order and form is in pari materia with its English equivalent, at para. 52/1/3 p.776, states that the requirement for the contempt to be stated must he strictly complied with by setting out in detail the acts constituting the contempt. This was not done.

31. In Chiltern D.C. v. Keane [1985] 1 W.L.R. 619 , the Court was concerned with technical breaches of the rules concerning the forms to be used and the information to he contained in those forms. The Master of the Rolls Sir John Donaldson at page 621, having set out the background commenced his Judgment by saving:

"I have said sufficient, I think to made it clear that if ever there was an appeal which totally lacked the ingredient of merit, it is this one and Mr. Munby of course has not suggested the contrary. However where the liberty of the subject is involved, this court has time and again asserted that the procedural rules applicable must be strictly complied with. It is in respect of alleged breaches of then procedural rules that Mr. Munby brings this appeal."

We are in much the same position here.

32. Later in his judgment the Master of the Rolls made reference to argument presented to the Court that someone who is committed to prison is entitled to know "the respects in which he has been found guilty".  He accepted that that, in principle must be right and then went on to say:

"However, apparently this is either never done or is not usually done, because in this particular case we can see from the committal order itself that, Goulding _.J.s order simply recited:

"And this court being satisfied that the defendant has been guilty, of contempt of court in failing to comply with the undertakings given before Vinelott, J. On 24 March 1980 and set out in the second schedule hereto and the order dated 18 December 1980 those parts of the order dated set forth in the third schedule hereto''

That is substantially the same wording as was used in earlier hearings on 17 July 1980 before Slade, J. and on 18 December 1980 before Graham, J. Both those judges found that there had been breaches of the undertaking or, as the case may be, the injunction, and decided to take no action at that stage but the wording is almost excatly the same, and it is quite clear that this is a common form of order. We have made inquiries. And it appears that something similar occurs in the Queen's Bench Division. That being so, it is quite clear that there ought to be a revision in the practice in both those divisions in order that the committal orders shall state whti sufficient particularity what it is that the court found proved in order that the contemnomay know the offence that has been proved against him.

I have been told that one of the problems is that judges, having heard the evidence, frequently say, 'I find the countempt proved,' without specifying the heads of contempt where there are more than one which they find proved, They may then proceed to consider what penalty, If any, is appropriate But that really is insufficient. As I say, the contemnor is entitled to know on how may counts he has been found guilty and to have them specified. I hope that judges will in future indicate in clear terms, when giving the reasons for their judgments, what it is that they find prove, and that those who are responsible for drawing up the orders will then record what it was that was found proved."

The appeal in that case was allowed.

33. In Re C (A Minor) [1986] 1 F.L.R. 578, mustill, L.J. in delivering the judgment of the Court of Appeal. And this to say at page 584:

"    There was another ground upon which the first part of the order was invalid. Form 85 the use of which in cases of committal for contempt is mandatory, requires the order to 'state the contempt'. Ever since Mcilraith v. Grady [1968] 1 O.B.468, this court and the Divisional Court have been emphasizing that this requirement is essential to the validity of the order. There is good reason for this. The contemnor must know precisely the nature of the contempt for which he has been imprisoned, so that he may purge it if this is possible, and the appellate court must he able to ascertain from the face of the order precisely what contempt the judge has found to he proved, so that the appropriateness of the sentence can he properly assessed As Griffiths, L.J.(as he then was) said in CBS (UK) v. Manoli [1985] New Law Journal L.P. 555:

'It is a fundamental principle of law relating to contempt that a person is not to be imprisoned for contempt unless the order imprisoning him allows him to see from the face of the order, the precise contempt for which he is being imprisoned.'"(Emphasis Supplied)

34. Finally, in Linkleter v. Linkleter [1988] 1 F.L.R. 360, Mustill, L.J. again had for consideration a defective order. There it was weld a defective order. There it was Held; allowing the appeal.

"the court had power under RSC Ord.59, r.10(3) to replace an order of a court below with 'such an order as the case may require' and there was anthority for the Proposition that the court might use its powers to cure a defective order where a contemnor had not been reduced to custody. However, the power of rectification was strictly limited and was to be given effect only in exceptional cases; it did not extend to cases as in the present case, where the order could not be cured by the addition or substitution of a few words but was fundamentally defective. Accordingly, the court could not , reformulate the order, and that part of the order relating to committal for contempt would be quashed."

35. It is Mr. Westbrook's submission that while the Order drawn up as we have indicated in considerable haste and which was approved by the Court, may not be as explicit as it should have been, nevertheless, by looking at the judgment of the trial judge and by looking at the affirmations supporting the application for committal, the contemnor could be in no doubt at all as to the reasons for his committal. That, in effect, cures the defect in the order.

36. With respect, we do not agree. This Order is fundamentally defective.  It did not specify to the contemnor on its face what the contempt was. We view the requirement that this should be done as mandatory. It did not comply with Form 85.

37. We respectfully adopt the words of Sir John Donaldson, M.R. in Chiltern as to the course which should be taken by judges dealing with matters of this nature when giving reasons for the orders they make and the assistance that is in the proper drawing up of the Order.

38. The liberty of the individual is at risk. The "technicalities" of compliance with the Rules are there to protect the individual and that protection is, in these cases, a matter of considerable importance.

We will abridge service, allow this appeal and set aside the Order of committal.

Representation:

Gilbert Rodway, Esq., Q.C. & Li Hon Lam, Esq. (Denton Hall Burgin & Warrens) for Appellant/ Respondent

Simon Westbrook, Esq. (Hampton, Winter & Glynn) for Respondent/Petitioner