Property Litigation Update – Devere v Hither Green
29th March 2016
Breach of Injunction & Committal for Contempt
Summary: In an appeal against a committal order on grounds including that there were procedural irregularities with the committal application, the Court of Appeal held that the judge below had been entitled to waive procedural defects in the committal application and make an order committing the appellant to prison for six month, suspended for two years, for repeated breaches of a court order.
Facts: The respondent, HG, was the freehold owner of land adjacent to the River Brent. HG’s title did not include the riverbank wall but did include a strip of land beside the wall. The appellant, D, had previously moored a barge there and had been embroiled in litigation for a number of years in which he claimed a possessory title to the wall and strip – he had pursued this allegation so persistently the court considered it D’s idée fixe. The court had held in previous actions that the local authority, which was the HG’s predecessor in title, owned the land and that D had no title to the river wall.
D had damaged the strip by applying paint, similar to that used for road marking, and HG obtained an interim injunction restraining him from interfering with the land. D had subsequently breached that order and had been committed to prison for contempt.
Subsequently HG obtained summary judgment against D declaring that it was the freehold owner of the strip and restraining D from interfering with it. D obtained planning permission and developed a number of new moorings which were accessed by a gate on the strip; he then padlocked the gate claiming that it was on his land. In yet another application, HG successfully sought D’s committal for breach of the injunction. D was committed to prison for 6 months suspended for 2 years.
D appealed against the committal order. He argued that (a) the gate was not on the strip but on top of the old river wall, (b) the committal application had been vitiated by procedural irregularities, (c) he was not in contempt because he honestly believed that the gate was on his land and (d) the court had wrongly refused to listen to his submissions on costs.
- whether D was entitled to padlock the gate on the ground that the gate as not on the disputed land owned by HG but on land that belonged to D;
- whether the committal application had been vitiated by procedural irregularities (which were unchallenged);
- whether D was not in contempt because he honestly believed that the gate was on his land; and
- had the judge wrongly refused to listen to D’s submissions on costs
Decisions on appeal:
The appeal was dismissed.
1) The ownership of the disputed strip of land had long since been settled thus the doctrine of issue estoppel was engaged and there was evidence on which the judge could properly conclude that the gate was on that land, and thus on the respondent’s land, and not positioned on top of the old river wall.
2) Applying the following passage of Neuberger J’s judgment in Bell v Tuohy  EWCA Civ 423 at  the judge below had been entitled to waive the procedural defects in the committal application:
“It is always a cause for concern if there are any technical or procedural defects in a contempt application. …However, at least for my part, I think it is wrong simply to conclude that because there are so many defects in the application, it must have been unsafe to commit Mr Tuohy to prison. The proper approach is to consider each of the defects relied on by Mr Tuohy and to describe whether they caused any prejudice or unfairness to him either separately or together.”
3) As for the ground that the mental element of contempt is not proved. Applying the principles in Masri v Consolidated Contractors International Co SARL  EWHC 1024 (Comm) at 150 and taking into account the following part of Christopher Clarke J’s judgment at 155: the appellant knew of the injunction – he was in court when the order was made; he knew of the breaches, which he admitted; and it was not necessary to show more than that he knew that what he was doing was in breach of the injunction.
“…the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong.”
4) The judge had not refused to listen to D in relation to costs, but on the contrary had offered him the opportunity to make such submissions as he wanted to, which he declined.
Expertise: Real Property
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