Scriven, Re

This is the judgment of the court. It sets out our reasons for having, at the conclusion of argument on 20 May 2004, dismissed the appeal. For reasons which will appear, we have treated the matter before us as a full appeal regardless of the very considerable lapse of time.

Mr Scriven is at present serving six months’ imprisonment for contempt of court in refusing to submit to his public examination in bankruptcy. Although the order for his committal was made as long ago as 5 July 2002, it was not implemented until 17 March 2004. It is partly because the intervening delay is not entirely explained on the Official Receiver’s part (though it has much to do with Mr Scriven’s peripatetic existence) that we have readily enlarged time. A further reason for doing so is that if, as is contended on his behalf, Mr Scriven has been unlawfully imprisoned, it is not too late to restore at least some of his lost liberty.

Mr Scriven has been represented throughout by his colleague Ms Rayne. With our permission she has addressed us in support of her written submissions. She has put Mr Scriven’s case with acuity and persistence.

The matter of Mr Scriven’s imprisonment has already been before the divisional court (Gage and Keith JJ) and this court (Tuckey and Laws LJJ). In the course of the proceedings it was established that Ms Rayne’s application on Mr Scriven’s behalf for a writ of habeas corpus was inappropriate, and that if there was a remedy it lay by way of an appeal out of time against the committal order and against the committal itself. Such an appeal lies as of right under section 13 of the Administration of Justice Act 1960.

This court on the previous occasion therefore dismissed the application for habeas corpus but adjourned the appeal to an expedited hearing – the hearing before us – in order to establish what was the true character of the proceeding on 29 August 2001 at which Mr Scriven was held to have acted in contempt of court.

Adjourning the matter, Laws LJ said this:

The hearing be adjourned to 29^th and 30^th August 2001 at 10.30am (Estimated length of hearing 2 days) at Stockport County Court…

Mr Scriven is released from custody in respect of these proceedings unless and until any further Order is made.

Mr Scriven is to attend the adjourned hearing.

Mr Scriven is to set out concisely in writing all the matters which he considers to be relevant to the issues before the Court.

The Official Receiver is to file and serve a reply by 4.00pm on 20^th August 2001 in respect of each matter (even if only to assert that the matter is not relevant and giving brief reasons for the assertions).

We now have transcripts of the material proceedings. These shed much light on the obscurities in the limited documentation which, as can be seen, troubled this court on the last occasion.

On 1 March 2000 Mr Scriven was adjudged bankrupt at Stockport County Court. On 19 March 2001 he was ordered to attend Stockport County Court on 18 June 2001 for his public examination in bankruptcy. He failed to attend. The public examination was adjourned generally and a warrant was issued for his arrest.

The order was captioned “In Bankruptcy”. It recited that it was made:

On 2 July 2001 Mr Scriven was arrested pursuant to the county court warrant. He was put up two days later, on 4 July 2001 before His Honour Judge Caulfield at Stockport County Court and was released from custody. There had been issued by the Greater Manchester police, on the day of his arrest, the charge sheet quoted by Laws LJ. This was evidently a bona fide attempt by the police to ensure that everything was regularly done, but it was not a necessary or appropriate document. The authority for Mr Scriven’s arrest was the county court’s warrant, and the detention authorised by it came to an end on 4 July 2001 when Judge Caulfield discharged Mr Scriven from custody.

It was on the latter occasion that the county court drew up the order which Laws LJ described as “Delphic”. It again carries the caption “In Bankruptcy” and the sub-caption “In the matter of The Insolvency Act 1986”. It orders that “The hearing be adjourned to 29 and 30 August 2001…". It releases Mr Scriven from custody “in respect of these proceedings”. It requires Mr Scriven “to attend the adjourned hearing”. It makes further provision for Mr Scriven to set out in writing “all the matters which he considers to be relevant to the issues before the court”, with a further note to the effect that these may or may not be relevant. It provides for service of these written submissions on the Official Receiver, and for an opportunity to the Official Receiver to reply.

The transcript, which we now have, of the hearing leading up to the making of this order lays to rest any possible doubt about the nature of the adjourned proceeding. It demonstrates Mr Scriven’s refusal, in spite of the judge’s repeated attempts to focus his mind on it, to deal with the matter before the court, namely his public examination in bankruptcy. Judge Caulfield showed endless patience in giving Mr Scriven the maximum opportunity to put whatever he conceived to be his case. When the judge, at the start, explained to Mr Scriven that the reason why he had been arrested was for breach of the order to attend for his public examination in bankruptcy, Mr Scriven replied: “May I defer my reply to that one till later?” With more tolerance than many judges would have shown, Judge Caulfield said: “Of course you may.” The judge went on to explain that his task was to deal with Mr Scriven’s breach of the court’s order to attend, and to make arrangements for the conduct, at a future date, of the public examination.

Mr Scriven fastened on the police charge sheet in order to assert that he had never been served. The judge said:

There was and is not the slightest doubt that it was the examination in bankruptcy which was being adjourned from 4 July 2001 to 29 August 2001, the first of the two dates finally set by Judge Caulfield. Manifestly no further issue about committal or bail survived in relation to Mr Scriven’s earlier non-appearance.

The hearing of the examination in bankruptcy resumed, as directed by Judge Caulfield, before Ms Recorder Hughes on 29 August 2001, with two days set aside for it. Here again the transcript which we now have sheds a flood of light on what happened. Mr Scriven appeared, assisted by Ms Rayne. Mr Ritchie, for the Official Receiver, opened the proceedings by saying: “This is the resumed hearing of Mr Scriven’s public examination.” Mr Scriven riposted:

This exchange demonstrates what was going on. Mr Scriven was determined to deflect the examination into a spurious argument about his long-spent contempt in not attending the examination in June 2001. The Recorder politely and insistently told him that he was wrong about this. After a while she asked Mr Scriven to go into the witness box, plainly in order to be examined about his bankruptcy. Mr Scriven responded by trying to interrogate the Recorder about the European Convention on Human Rights. The Recorder told him that it was now for him to go into the witness box and answer questions. Mr Scriven responded:

The Recorder finally interrupted an increasingly wild tirade by Mr Scriven by asking Mr Ritchie how he wished to proceed in the face of Mr Scriven’s refusal to give evidence. Mr Ritchie submitted, plainly rightly, that Mr Scriven was now in contempt of court. He invited the Recorder to adjourn the public examination in order to permit a formal application to be made to commit Mr Scriven for contempt. The Recorder agreed to this course, though not before Mr Scriven had launched a further tirade against the legal system. She gave a brief judgment:

It is manifest that Mr Scriven knew perfectly well why he was before the court. When evasion failed to deflect the purpose of the proceedings he resorted to abuse. Ms Recorder Hughes, who has been the object of some offensive criticism before us, can be seen from the transcript to have handled this difficult situation calmly and to have kept the hearing on course. She deserves commendation for it, and the course which she took of adjourning the sanction for Mr Scriven’s fresh contempt to a different tribunal was appropriate, so that there would be no sense in which she would be acting as judge in her own cause.

On Friday 5 July 2002 the Official Receiver’s application for the committal of Mr Scriven to prison for contempt of court came before His Honour Judge Howarth. Mr Ritchie appeared for the Official Receiver. Mr Scriven was absent. The judge said:

Judge Howarth ran through the history of the matter, noted that there was no answer to the allegations of contempt and no mitigation, and imposed a sentence of six months’ imprisonment. He noted that two years was the maximum which he could impose, and that to fine a bankrupt would not be a meaningful measure. He made it clear that the sentence was not higher than it would otherwise have been because of Mr Scriven’s voluntary non-attendance.

An order of committal in form N79 was drawn up and issued by the county court on 5 July 2002, the date of the hearing before Judge Howarth. A warrant of committal in form N80 was drawn up initially, it appears, on 21 August 2002. It was re-issued on 4 March 2003 and again on 5 February 2004. As we have recounted, it was finally executed and Mr Scriven was arrested and imprisoned on 17 March 2004.

It is Mr Scriven’s case, as put by Ms Rayne, that when he telephoned Stockport County Court after 11 August 2002 he was told that there was no warrant out for him. This is not deposed to, but it may well be true, since it is apparent that the warrant was not initially issued until 21 August 2002. More important, Mr Scriven asserts that the committal order was never served upon him, and that he did not see the warrant until after he was arrested. Mr Ritchie, for his part, accepts that the Official Receiver cannot demonstrate that the order was served. We approach the matter therefore on the footing that the order was not served and that the arrest took place pursuant to the warrant which was issued under authority of the order.

A letter had been sent by the Treasury Solicitor to Mr Scriven at Ms Rayne’s address on 26 July 2002, which she passed onto him on or about 11 August and which said:

The order which was enclosed, however, was not the committal order or the warrant (which of course had not even been issued at this date). It was an order adjourning the public examination in bankruptcy and making consequential provision.

Order 29 of the County Court Rules, which continues to have effect under the Civil Procedure Rules, provides by rule 1(5):

a copy of the order shall be served on the person committed either before or at the time of the execution of the warrant;

where the warrant has been signed by the Judge, the order for issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant.”

This provision does not require a warrant to be signed by the Judge as a condition of its validity. It prescribes what a committal order is to contain and requires it (unless the Judge orders otherwise) to be served on the contemnor before or at the time of executing the warrant. It is only where the warrant has been signed by the Judge that the order may be served up to 36 hours after the warrant has been executed. Ms Rayne submits, nevertheless, that signature by the Judge is a condition of a valid warrant. She draws our attention to a High Court Practice Direction of 30 January 1961 captioned “Committal Orders”. It reads:

This does not have the effect of introducing a requirement of judicial signature. First of all it is a practice direction, not a rule of court. Secondly, it relates to High Court committal orders. The procedure in the county court remains governed by Order 29 Rule 1(5), with the effect we have described.

Reliance has also been placed upon what Purchas LJ said in B v B [1991] 2 FLR 588, 597:

In the fact situation which we have described, however, Order 29 Rule 1(5) was not complied with. The question for this court, therefore, is how to exercise its appellate powers. These reside in Section 13 of the Administration of Justice Act 1960:

The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just…”

Decisions of this court have reiterated that, as Lord Donaldson MR said in M v P [1993] Fam. 167, 178:

the “victim ” of the contempt and

other users of the court for whom the maintenance of the authority of the court is of supreme importance.

It is the final limb of this formulation which is in issue before us. Up to the point where he was found guilty of contempt of court and sentenced, Mr Scriven had enjoyed every latitude possible and had been in no doubt about what was happening. But it is Ms Rayne’s submission that the right to be told in terms of what has been found against him is not merely a formal right: it is only on seeing the committal order that the contemnor can decide whether he should appeal against the making of the order, seek to set it aside, or comply with it and seek to purge his contempt.

We accept Ms Rayne’s submission as to the principle behind the rule. The question for us is therefore whether, through non-compliance with the rule, the principle has been infringed.

Ms Rayne has relied on the decision of a two-judge Court of Appeal (Dunn and Watkins LJJ) in Beeston Shipping Limited V Babanaft International SA[1985] 1 All ER 923. This was a decision on non-compliance with the provisions in the rules for giving a judgment debtor due notice of the time and place appointed for his examination. The case was argued without reference to Section 13 of the Administration of Justice Act 1960. It was held that strict compliance was required with the rules governing service of notice. An analogy in the present case would have been a failure to notify Mr Scriven of the hearing before Ms Recorder Hughes or Judge Howarth. But the decision does not bear usefully upon the present issue. As Lord Woolf MR said in Nicholls vNicholls [1997] 1WLR 314, 326:

The first thing that needs to be noted is that Mr Scriven, in spite of the apparent failure of service and the answer to his telephone enquiry, was by no means in the dark about what had transpired. In her witness statement made on 4 June 2003 Ms Rayne states:

But what is far more important, in our judgment, is this. It is one thing for Ms Rayne to establish in principle the reasons for serving a committal order. It is another to establish in fact – as she has conspicuously not been able to do – that any of the intended purposes would have been served by formal service of the order. Nowhere does Mr Scriven, or Ms Rayne on his behalf, begin to suggest that had he had notice of the committal order he would have had grounds for appealing it or setting it aside, or that he would have taken any step whatever to purge his contempt and agree to enter the witness box. His attitude has throughout been one of contumacious defiance of the court’s process in bankruptcy. Nor does Mr Scriven suggest at any point that he did not know why he was being arrested. In our judgment he knew perfectly well. He had deliberately stayed away from the committal proceedings; he must have known through Ms Rayne, long before the date of his arrest, that a warrant was out for him; and he is unable even now to suggest that it would have made any difference to his course of conduct up to the moment of arrest had the committal order been physically served upon him.

We have now dealt with three of the four issues of any potential materiality canvassed by Ms Rayne: the nature of the hearing on 29 August 2001; the failure to serve the committal order; and the non-signature of the warrant by a Judge. This leaves one final issue: the fact that no conduct money was tendered to Mr Scriven when he was required to attend his examination in bankruptcy. The rules have for many years provided that witnesses and judgment debtors must be offered conduct money when they are served with process requiring them to attend court. The same, however, is not true of bankrupts. The Insolvency Rules 1986, by Rule 7.41(1), spell out in terms:

In our judgment, therefore, there has been no failure of due process giving rise to any such injustice or unfairness as would warrant the exercise of the court’s appellate power contained in section 13 of the Administration of Justice 1960. Although no formal appeal has been made against the term of imprisonment imposed on Mr Scriven, we have considered it, and have noted Ms Rayne’s submission that the maximum permitted sentence for a debtor who refuses to be sworn on a judgment summons, is 14 days. However, the contempt for which Mr Scriven has been committed carries a maximum period of 2 years, and we do not find it possible to say that in the circumstances in which Judge Howarth came to deal with the matter, the term imposed by him (which by virtue of sections 11 and 23 of the Crime (Sentences) Act 1997 carries early release for good behaviour) was excessive.

These are the reasons for which we have dismissed Mr Scriven’s appeal.