Messer v Messer

J U D G M E N T

1. LORD JUSTICE WALLER: This is an appeal brought by Mrs Messer from an order for committal made on 19th January 2004. On 21st December 2004 I gave a judgment dismissing two applications for permission to appeal made by Mrs Messer. In that judgment I set out the history of the proceedings in which Mr Messer had sought possession of his property, 7 Penhurst, Old Harlow, Essex. He was seeking possession of that property following the breakdown in a relationship between him and Mrs Messer.

2. I will not set out that full history again. Suffice it to say the first order for possession of that property was made as long ago as 23rd November 2000 by DJ Blomfield. Many attempts to appeal that order by Mrs Messer failed. Ultimately, on 14th March 2002 -- and I should say in my judgment I refer to that order as of 21st March, and that is because that was the date when that order was drawn up, but it in fact was made on 14th March 2002 -- HHJ Sennitt made a further order for possession of that property and on this occasion a penal notice was attached. Many attempts were made to appeal that order, and ultimately that failed.

3. It initially failed before Pumfrey J, and that is of some relevance to a point taken originally by Ms Rayne on behalf of Mrs Messer in relation to the committal order, because an application to commit had already been issued and adjourned by HHJ Plumstead to a date post-determination of any appeal against the committal order. Pumfrey J dismissed the appeal against that order of 14th March 2002 on 16th June 2003, thus determining the matter. What happened thereafter was that an application was made to reopen the order made by Pumfrey J on the grounds that Mrs Messer was not present. Finally, that application was successful. It was reopened, but ultimately the appeal was dismissed in July 2004, some months after the committal order had been made, and indeed some weeks after the suspension period which was contained in that committal order.

4. The committal order was made on 19th January 2004 by HHJ Sennitt, and that order was to commit Mrs Messer to prison for contempt for 28 days. Furthermore on that day that judge also ordered the execution of a warrant for possession. The order was made on the basis that Mrs Messer had not complied with the order of 14th March made by HHJ Sennitt for possession of the property. The order was suspended for a period of six months -- that is, until 19th July 2004 -- and it was not to take effect if Mrs Messer forthwith delivered up possession of 7 Penhurst, Old Harlow, Essex.

5. In my previous judgment I pointed out that Mrs Messer had the right to appeal that committal order to the Court of Appeal. She exercised that right by filing a notice of appeal on 21st January 2004. In that notice she also applied for a stay. That stay application came on before Poole J, who refused it. As I indicated in my previous judgment, that may not have been the right place for that application to come on because any appeal from the committal order was an appeal to the Court of Appeal. For some reason the appeal itself was never listed during 2004 and had not been listed by the time I was dealing with the permission applications in December last year.

6. In my judgment in December last year I directed that that appeal should be listed as early as possible this term and that is what has occurred. I pointed out in that judgment, and indeed we have pointed out to Mrs Messer today, that she has no right to attack the judgments which ordered possession. The only right of challenge by way of appeal to this court is to challenge the order for committal.

7. When the matter was before Poole J he provided a period for putting in grounds that she might wish to rely on for reversing the committal order. In response to that, the person who was at that stage assisting Mrs Messer, who was a Ms L Rayne, put in a document which raised four points. Two of them related to Michael Messer, who was Mrs Messer's son, but since no order for committal was made against him they cannot assist Mrs Messer. The other two first alleged a want of jurisdiction in HHJ Sennitt, and the other alleged that he was biased.

8. So far as jurisdiction was concerned, I have already indicated the point. What was argued was that HHJ Plumstead had adjourned the committal for contempt application until the appeal of the possession order had been determined. The fact is that when HHJ Sennitt heard the application for committal on 19th January 2004 the appeal had in fact been determined. In any event it matters not because no point was actually taken before HHJ Sennitt that he did not have jurisdiction. Since he would have had jurisdiction even if the point had been raised before him, there is nothing in that point.

9. So far as bias is concerned, there is simply nothing to support an allegation of bias. The highest it can be put is that HHJ Sennitt had decided the possession order originally against Mrs Messer, but that provides no basis for saying the judge was biased. Again there was nothing in that point.

10. Indeed, when I dealt with the matter in December, I gave Mrs Messer a further opportunity, not knowing of the existence of that document from Ms Rayne, to put in any grounds for attacking the committal order. She did not file anything, so far as I am aware, with the court, and certainly not in the timescale, other than a letter of 8th January. But she has put before us a further letter of 18th January. I can deal with them both together because in neither does she raise any ground of attack on the committal order itself. In both she goes back to asserting that the original order for possession was unfair, and she goes back to arguments which she raised in the context of the litigation concerning whether a possession order should be made, the unfairness of her treatment by Mr Messer, all matters which go to the original orders and not to the order for committal.

11. So the position as at today's date, insofar as arguments are concerned from Mrs Messer, is that there is no point that she can raise by way of upsetting the judgment given by HHJ Sennitt on 19th January for making an order committing her to prison.

12. That being so, there is only one answer to this appeal, which is that it cannot succeed. That said, the history of the matter is such that the order which HHJ Sennitt made on 19th January was one which suspended the effect of the order until 19th July. By virtue of the delays that there were in the litigation which lay behind the making of that committal order, that date went by before Lindsay J had finally disposed of the appeal from the original possession order, and it seems that on 19th July those representing Mr Messer went before the judge to seek from him an extension of the suspension. He was unhappy to do that while the underlying order was still the subject of an application for permission to appeal, but he did make clear that Mr Messer, so far as he was concerned, would not be prejudiced by not making any application to enforce that order at that stage.

13. It would be unfair on Mrs Messer simply to dismiss this appeal, leaving her in the position where an application could be made to commit her to prison as of today or tomorrow, without giving her a further proper opportunity to leave the property. Thus I, for my part, and I understand my Lord to agree, think that there should be a further period allowed to her and that the proper order to make is to extend the suspension of the committal order for a further period of six weeks.

14. I would just explain why it would not be right to give any further period. Mrs Messer, it is true, has in one sense suffered from the delays that have taken place in dealing finally with the appeal process from the orders for possession originally made, but to some extent she has been the author of those delays, as well as the victim of them. Mr Messer has been seeking possession of this property for a very long period and has actually been shown to be justified in the order he was seeking and which he originally obtained as long ago as 23rd November 2000. Mrs Messer has had advice from at least September last year from those who were assisting her that the only course, and the only appropriate course, for her was that she should leave the property, there now being an order against her. She has thus known for a considerable period of time that she must leave this property -- that is the order of the court -- and she has known for some time that if she does not obey that order, then she will go to prison.

15. She should however have that extra period of six weeks but know that if she does not leave the property within that period, then the committal order that was made by HHJ Sennitt on 19th January will be effective.

16. LORD JUSTICE LAWS: I agree with the order proposed to be made by my Lord for all the reasons he has given.

Order: application dismissed; period of suspension varied to expire six weeks from today's date; order for costs assessed at £1,900.