Bristol & West Investments Plc v Tompkins

J U D G M E N T

Monday 26 June 2006

LORD JUSTICE BUXTON:

1. This is a matter which has a long and most unsatisfactory history. The particular issue with which we are concerned, the order of His Honour Judge Harris QC committing Mr Tompkins, the appellant, to prison for contempt of an earlier order of Judge Harris, originally came before this court on Friday 16 June 2006. For reasons that were set out in the judgment delivered on that day, the court was not satisfied that Mr Tompkins had necessarily had full and extensive notice of the hearing or time to prepare for it. We therefore considered that it would be fair to him to adjourn the matter to a date when he could be expected to be ready.

2. Mr Tompkins was not represented on that occasion. But today he has had the advantage of representation by Mr Austen Morgan, who has clearly taken the matter seriously in hand and has said everything that could possibly be said in support of this appeal. However, regrettably, the appeal is hopeless.

3. I do not propose to set out in detail the history that has led up to us being here today. It is set out in paragraphs 1-7 of the judgment of this court of Friday 16 June 2006, to which reference may be made by anyone who needs further information about the facts. Put shortly, these proceedings are the culmination of lengthy attempts by the Bristol and West Building Society to secure possession of land mortgaged by them to Mr Tompkins and his wife several years ago: attempts that have been resisted serially and in detail by Mr Tompkins, originally (but not now) supported by Mrs Tompkins, and which have involved courts at three levels, including four judges of this court, three judges of the Queen's Bench Division, His Honour Judge Harris and at least two district judges operating within the jurisdiction of the Oxford County Court. As Mr Morgan very fairly said at one point in his submissions, if there were any point that could be urged on Mr Tompkins' behalf, it would surely have emerged in the course of one or other of those judicial examinations. That is quite apart from the fact that on a number of occasions, though by no means always, Mr Tompkins has had the advantage of representation by a number of firms of solicitors.

4. The problem that attaches to the building society obtaining possession of the land is that it is not clear, but is at the moment occupied by 60 head of cattle. They have been there throughout these proceedings. We are told, and we have no reason to doubt it, that they belong to Mr and Mrs Tompkins. Mr Tompkins refuses, and continues to refuse, to remove them, so that he is not able to give the building society the vacant possession to which they are entitled. Not only that, but because of arrangements that resulted from the foot and mouth epidemic, if an animal is to be sold on any commercial basis and therefore into the food chain, it must have a passport, that is a document vouching it to be fit to enter that food chain.

5. Although there are apparently in existence such passports for these animals, Mr Tompkins has refused to produce them to the Bristol and West Building Society or to the County Court bailiffs. That means that if the cattle are removed by the building society to obtain the vacant possession to which they are entitled, they will have to be slaughtered. There was evidence before the court at an earlier date that, following enquiries, the Department of Rural Affairs had indicated that a licence could be granted to enable cattle, even without their passports, to be moved to an abattoir for slaughter.

6. The unhappy effect of all this, therefore, is that if the order is enforced, and enforced in the terms that Judge Harris ordered, these beasts will be slaughtered. That will be a financial loss to Mr Tompkins and also will be a serious waste of a valuable community asset. Mr Tompkins is well aware of that. He has indicated first to the courts below, secondly to this court on 16 June, and thirdly through Mr Morgan today, that nonetheless he is not prepared to make the passports available. He would prefer to see the cattle slaughtered rather than to co-operate with the legal process.

7. That background demonstrates why the court has found this matter one of some anxiety. We are, however, here because Judge Harris made an order as long ago as 18 January 2006 that Mr and Mrs Tompkins should remove all remaining livestock from the land with which this case is concerned. They were forbidden to enter the land, save for that purpose. They both applied to set aside that order, as they have serially applied to set aside many previous orders. His Honour Judge Harris dismissed that application on 15 February 2006.

8. By the middle of April compliance had still not had taken place and therefore the Bristol and West Building Society applied for committal. On the return date for that application, solicitors instructed by Mrs Tompkins indicated to the court that, whilst she had loyally supported her husband previously, she was no longer prepared to act contrary to the court's order. However, it was made plain that, although she is a joint owner of the animals, she does not have possession of the passports. She was not in a position to remove the cattle from the land, but she was in a position and prepared to sign any documentation that was needed to facilitate the removal of the animals. She therefore effectively disappears from the committal order.

9. On 24 May His Honour Judge Harris made the order with which we are concerned committing Mr Tompkins to prison unless he removed the cattle by 4pm on 7 June 2006. Mr Tompkins did not comply, despite the grace given to him by Judge Harris. On the contrary, on the last day available to him he appealed against the committal order and also, so far as can be seen from his documentation, applied for permission to appeal against all previous orders that have been made against him dating back to August 2003. That later application was dismissed by this court on 16 June. I do not go into it further. We were told this afternoon that Mr Tompkins intends to appeal (to what tribunal I am not quite certain) against that order; but there is no appeal in front of us and, speaking for myself, without wanting to prejudge anything, I do not see how it could proceed.

10. We are left with the fact that Mr Tompkins still has not complied with the conditions suspending the committal order; nor has he taken any steps to correct the matter which caused Judge Harris to commit him.

11. I can see no way in which this court can do anything other than dismiss the appeal and uphold the order of Judge Harris. If I thought that there was any practical likelihood of the matter being regulated to the extent that these beasts could be saved from the abattoir, then even at this late stage, and despite Mr Tompkins' continued and flagrant defiance of the court, I would be inclined to explore some way of achieving that. But it seems to me that, without Mr Tompkins' co-operation, that cannot be achieved. I would therefore uphold the order of Judge Harris made on 24 May 2006 on condition that Mr Tompkins would be committed to prison on 7 June 2006 unless he removed the cattle. Mr Tompkins has not removed the cattle. He should now be committed.

12, I have considered whether it would be appropriate for this court to execute that order now and commit Mr Tompkins from this court straight away. However, subject to any view that my Lord may have, I think that the more appropriate course would be for the execution of the committal order to be supervised by the Oxford County Court where the order was made. I would therefore be minded to order that Mr Tompkins report to the court office at the Oxford County Court at 2pm tomorrow, 27 June 2006, so that the order may be implemented in such a way as that court thinks appropriate.

13. Mr Tompkins is not at the moment in court. He is in the building. We are told that he is at the moment seeking to issue further proceedings at the Court of Appeal Office. I am afraid that I must ask those advising him, who have already done a great deal to assist him, to inform him of the order that the court has made. If they need further assistance in that, the tipstaff is in court. He will if needs be assist Mr Tompkins' advisers in locating Mr Tompkins and conveying that order to him. That order is to be implemented in the Oxford County Court in the terms that I have indicated.

14. If, having been committed, Mr Tompkins has a change of heart (not at the eleventh but at something like the seventeenth hour) and is then prepared to co-operate with the court, if he were to make an application to the Oxford County Court in those terms for his release on terms, that application would be considered. I put it no higher than that. It will be for that court to decide in the light of this very long history whether it could permit any lifting of the order, whatever the terms are. Subject to my Lord's view, that is what I would order.

15. LORD JUSTICE SEDLEY: I agree with the disposal proposed by my Lord and his reasons for it.

14. LORD JUSTICE BUXTON: For the avoidance of doubt, in my view no criticism at all attaches to the Bristol and West Building Society in this matter. They have shown exemplary patience in the face of very serious aggravation.

ORDER: Appeal dismissed.