The Governor & Company of the Bank of Ireland v Shah & Anor

LORD JUSTICE CHRISTOPHER CLARKE: On 12th March of this year Lawrence Dubash, whom I will call "the appellant", was committed to prison for ten months. He now appeals against that sentence. The history leading up to his committal is somewhat complicated. I shall endeavour to summarise the salient facts.

The respondent is the Governor and Company of the Bank of Ireland, which I shall refer to as "the Bank". On 17th June 2004 the Bank entered into a mortgage with a Mr Jeetan Shah in respect of a first floor one-bedroom leasehold flat at 57a Heather Park Drive, Wembley, Middlesex. Mr Shah was the mortgagor. According to the appellant, on 7th July Mr Shah granted him a tenancy of the property, but the Bank says that he has provided no evidence that he had a legal right to occupy that property.

On 19th May 2012 the Bank issued a possession claim against Mr Shah in the Willesden County Court. On 19th June 2012 Deputy Judge Austin made a possession order against Mr Shah. Possession was to be given on or before 17th July 2012. It had been sought as a result of substantial arrears. On 19th September 2012 a bailiff attempted to execute the possession order. According to the appellant, this was the first time that he had heard of it.

On 20th September 2012 the appellant applied to stay the warrant, and on 25th September 2012 District Judge Steel suspended the warrant of possession until 13th November 2012 on condition that certain payments were made. The appellant failed to vacate the property and the Bank applied for the warrant of possession to be re-issued.

On 9th January 2013 the appellant made a second application to stay the warrant and on 11th January that application was dismissed.

On 12th September 2013 the appellant was evicted from the property. This eviction followed earlier abortive attempts to evict him on 7th February and 11th September 2013. At some time before 18th September 2013 the appellant re-entered the property.

On or around 17th September 2013 the appellant issued a claim and an application seeking an injunction to prevent the Bank from recovering possession of the property. On 5th October 2013 that claim and application were dismissed by Her Honour Judge Karp as being totally without merit.

On 19th November 2013 the appellant was evicted from the property a second time. Shortly thereafter he re-entered the property once again.

On 6th January 2014 the Bank issued an application to add the appellant as a party to the proceedings, to attach a penal notice to the possession order and for a further warrant of restitution. The application was listed for hearing on 10th April 2014.

On 10th April 2014 Deputy District Judge Hussain appears to have added the appellant as second defendant, given the Bank permission to file and serve an amended claim form, amended particulars of claim and amended possession order, and required the appellant forthwith to comply with paragraph 1 of the possession order of 19th June 2012; that is to say, to give possession of the property. I say "appears to have" because there is a dispute as to the validity of the order of 10th April 2014.

The evidence is that the appellant was served with the order in three separate ways. First, as counsel reported to the Bank's solicitors on 11th April, the Deputy District Judge made the order and then asked for a spare copy to endorse and seal. The appellant said that he had no post box and the Deputy District Judge said that he could take a copy with him. After the order was sealed, counsel, being closer to the appellant than the judge, leant forward and took the order from the judge and handed it to the appellant. He took it and they both left court. After leaving court, the appellant dropped the order on a desk and told counsel that the document was not his. Counsel explained that the judge had given it to him, and he responded that it was counsel who had done so and left. The usher then took the order and returned it to the judge.

Secondly, on 25th April 2014 the amended claim form, amended particulars of claim and the April 2014 order, which attached the amended June 2012 order endorsed with a penal notice, were served on the appellant by first class post at 57 Heather Park Drive, the address which the appellant had provided as his correspondence address. Thirdly, on 27th April 2014 a process server served the April 2014 order and the amended order for possession by placing two copies in separate sealed transparent envelopes and fixing one to the front door and one to the side door of the property, as prescribed by CPR 55.6(a). In addition, on 8th August 2014 the order was sent a fourth time to the appellant at 57 Heather Park Drive, his address for service, and 57a, the address of the property.

On 12th April 2014 the Bank filed an application to transfer the proceedings to the High Court for enforcement. It did so because it anticipated that the High Court would be in a position to deal with enforcement action more quickly than a county court and that a High Court enforcement officer would, by virtue of his additional powers, have more success in removing the appellant from the property than the county court bailiff. Apparently the practice in the High Court is that the officer is not required to provide any notice to persons intended to be evicted and this, so the Bank thought, would reduce the risk of the appellant barricading himself into the property or gathering accomplices to prevent repossession, as had happened on previous occasions.

On 29th May 2014 an order was made transferring the claim to the High Court. The application by the Bank was not served on the appellant before the order was made. The application was dated 12th May, as appears from the order of 29th May. The order provided that any party might apply, within seven days of receipt, to have the order set aside or varied or stayed. The order identified only Mr Shah as a defendant, even though the appellant had now been added as a defendant to the proceedings.

On 20th June 2014 the Bank's solicitors posted to the appellant a copy of the order of 29th May at the address 57 Heather Park Drive. On the same day they instructed sheriffs to enforce the possession order.

On 10th July 2014 a High Court writ of possession and control was issued. On 25th July 2014 the appellant was evicted from the property for a third time. However, relatively soon thereafter he got back into the property.

On 26th September 2014 the Bank applied for the appellant to be committed to prison for what it said were repeated breaches of the amended possession order. On 1st October 2014 the sealed application to commit and notice of hearing were served on the appellant by post, by e-mail and by attaching the application to the front door of the property.

On 15th October the appellant attended at the Willesden County Court and was provided with a copy of the order of 29th May. The clerk at the entrance area of the court told him that only parties to the case are served with a notice of hearing and the general form of judgment or order; that Mr Shah was the only defendant who was a party in the matter, and that should anyone wish to be added as a party it must be done by application. That that was the message conveyed to him is confirmed by an e-mail from the Willesden County Court of the same date.

On 16th October, which was the date listed for the contempt hearing, the appellant failed to attend. He was represented by a lady who indicated that he was indisposed. There was provided a large bundle of documents in a file headed "Void ab initio". This constituted a challenge to the validity, but not the existence, of the order of 10th April 2014.

The contention was that the judgment of District Judge Hussain of 10th April 2014 was void ab initio. A number of grounds, some 12 in number, were set out in another document. Mr Nicholas Nicol, who appears on behalf of the appellant, has not sought to rely upon those grounds. None of them appear to me to indicate that the order in question could properly be described as void. The document filed contained a paragraph which read:

Apart from that sentence, whose meaning is not wholly clear but appears to be a reference to the supposed voidness of the order of 10th April 2014, I can find no reference in the extensive documentation to a contention that the order of 29th May 2014 was invalid. We were told by Mr Nicol that it was his understanding that the appellant had always considered the order of 29th May 2014 invalid since October 2014, by which date he admits that he had received the order of 10th April, but, as I say, there appears no reference in that documentation to the order of 29th May.

Spencer J adjourned the committal hearing to 20th November 2014. He required the appellant to attend the adjourned hearing and to file by 24th October 2014 a witness statement setting out the grounds upon which he maintained that he was not in contempt. The appellant does not appear to have done so.

On 20th November 2014 the committal application was heard by His Honour Judge Seymour. He found that the appellant, who attended the hearing, had breached the amended possession order by virtue of his continued occupation of the property and committed him to prison for three months.

On 3rd December 2014 the Bank obtained possession of the property for the fourth time.

On 2nd January 2015 the appellant was released from prison. The Bank had been told that he was to be released on 4th January 2015. The appellant then entered the property again. This was the fourth re-entry of his.

On 6th February 2015 the Bank applied a second time for the appellant to be committed to prison for breaches of the possession order.

On 19th February 2015 the appellant wrote to the Bank's solicitors, telling them that the Willesden County Court had said that they had had no record of the penal notice on their files and that no such record existed, and no record of joining the appellant to the proceedings. He claimed that it followed that the committal obtained on 20th November 2014 was void and that the proceedings should therefore be struck out.

On 6th March 2015 the appellant applied to set aside or strike out the proceedings or to stay enforcement pending a claim which he intended to issue against the Attorney General. That application was dismissed by Lewis J on 10th March 2015.

On 12th March 2015 Her Honour Judge Taylor found the appellant guilty of contempt and committed him to prison for ten months.

Judge Taylor considered the appellant's claim that he was not given notice of the transfer to the High Court in May 2014. It is not wholly clear whether that was a reference to the application of which the appellant was not given notice or to the transfer itself, of which he was. She considered that this did not affect the application then before her. She also considered the appellant's statement that the County Court at Willesden had no record of the order of 10th April 2014 on the file. She observed that this might be the case at the desk, where the appellant said that he had received the information, but recorded that she had in the file the order of 10th April 2014, so that the court certainly did have copies of the order and there was sufficient evidence that it was made.

She referred to the history of the matter and the fact that the appellant had been committed to prison for three months by His Honour Judge Seymour on 20th November 2014. She was satisfied that the appellant was aware of the order of April 2014 and that he came from prison where he had been committed and repeated the very contempt for which he had already been committed to prison, from which he had only just been released. He had, she held, remained in occupation without any justification for doing so, and on the evidence she found him in contempt of court.

She regarded his re-entry into the property immediately on release from prison as a serious and contumacious flouting of the orders of the court of which he was aware, such that a custodial sentence was appropriate. She regarded the fact that the appellant believed that he had rights in the property as no excuse for continuing without foundation to re-enter the property in circumstances where he had been advised by Spencer J in October that he should seek legal advice and appeared to have either not done so or failed to heed what advice he had been given. She also took into account the prejudice that had been suffered by the Bank, which had suffered considerable financial loss in pursuing the applications against the appellant and which was at risk of loss, given that the arrears on the mortgage were £47,838, the outstanding balance £181,167 and the valuation of the property £175,000. Taking all those matters into account, she imposed a sentence of ten months.

The appellant's notice was received on 8th April 2015, which was six days beyond the 21 day time limit prescribed by CPR 52.4(2)(b). We propose to extend the appellant's time for filing the notice of appeal. The delay is relatively short. The reason given is that the appellant had difficulties in securing access to the relevant forms when in prison. So far as the justice of the case is concerned, this appeal concerns the liberty of a subject; the delay has not had any significant impact on the efficiency or cost of the proceedings, nor has the Bank been prejudiced by it. In those circumstances it is appropriate to extend time.

Mr Nicol, for the appellant, submits that the order of 29th May 2014 was a nullity, as were all steps taken in the High Court thereafter, including the two committals that had been made by the High Court. That, he submits, is the position and would have been the position even if the appellant had said that he took no point on the validity of the transfer. The reason he submits why the order of 29th May 2014 is a nullity is because the Bank's application for an order was never served on the appellant, the appellant had no notice of any hearing at which the order was made, the order itself did not refer to him and it was not served on him by the court.

There was in fact no hearing. The order was made ex parte. As was to be expected of any such order, it permitted any party to apply within seven days of receipt of the order to set it aside or to vary it or to stay it.

In my judgment, it was open to the court to make an order ex parte. Section 42(3) of the County Courts Act 1984 provides that an order under section 42 may be made either on the motion of the court itself or on the application of any party to the proceedings. That appears to me plainly to provide that the court has jurisdiction to make an order in the absence of any of the parties.

CPR 30.4 provides that where the court orders proceedings to be transferred, it will give notice of that transfer to all the parties. This itself appears to contemplate that not all the parties may have received notification of any application for a transfer order.

Even if the making of an order ex parte with liberty to apply to set aside was wrong, which I do not accept, the order was not, in my judgment, a nullity. The order was one which the court had jurisdiction to make pursuant to the Act. I cannot regard it as fatal that the order wrongly failed to name the appellant as a second defendant. That fact makes plain why the court itself did not give notice of the order to the appellant, but what was transferred were the proceedings to which the appellant was in fact, by a prior order, a party. Further, the Bank did serve the order, which the appellant either received in April or came to learn of in October 2014, such that he could have applied to set the order aside, but he did not.

Reliance is placed on the case of Craig v Kanssen [1943] 1 KB 256. In that case a plaintiff had been granted an order giving him leave under the Courts (Emergency Powers) Act 1939 to proceed to the enforcement of a judgment which he had obtained in January 1937. The order was obtained on the basis of an affidavit of service which stated that the deponent had served on the defendant a true copy of the summons asking for the order by posting it in a pre-paid envelope addressed to the defendant at an address which was alleged to be that of the defendant's place of business and residence. In fact, the defendant was neither resident nor carrying on business there, nor was the address the address for service in the action, and the defendant never received the summons.

After a review of the authorities, Lord Greene MR said this:

The facts of that case appear to me to be significantly different from the facts of the present case. Service in that case was, in effect, a form of originating process so far as the enforcement of the judgment was concerned, and could only be done in a specific way. An order for transfer from the county court to the High Court made ex parte, as the Act contemplates, is not a form of originating process and is not properly to be described as void and thus a nullity. Even if it were appropriate for the order not to be made ex parte, it does not seem to me that if it is made ex parte it is itself a nullity. Nor does the order become a nullity on account of any subsequent failure by the court to serve it, particularly in circumstances where there has been service of the order by the applicant for it. At worst, the failure of the court to serve the process was an irregularity.

In MacFoy v Unite African Company Ltd [1962] AC 152, Lord Denning observed that no court had ever attempted to lay down a decisive test to distinguish between an act which was void and one which was voidable. He suggested that a useful test was to suppose that the other side had waived the flaw in the proceedings or took some fresh step after knowledge of it. Could he afterwards, in justice, complain of the flaw? That test seems to me of some use here. If the appellant knew that the transfer to the High Court had been made, and either did nothing about it or actively participated in the proceedings once they were in the High Court without objection, could he still claim that the proceedings were in a court that could not deal with them? As Lord Denning observed in MacFoy, the answer to that question is, in my opinion, clearly not. That being so, the failure by the court to serve him with the order cannot be regarded as rendering the transfer a nullity, whether or not the appellant had that knowledge and failed to act.

Here, as it happens, the appellant was served with the order, albeit not by the court, from which it was apparent that he could make an application to set the order aside. He does not appear to have complained of any want of service of the application for the May order in his void ab initio document or at the hearing before Spencer J or Judge Seymour, although he did before Judge Taylor.

Further, as it seems to me, any objection to the transfer to the High Court was without merit. The order was sought because of the different powers of the High Court bailiff. Given the history of difficulty in enforcing the order, that seems to me a justifiable ground to seek a transfer, and there would seem to me no good basis for setting the order aside, especially when no complaint of transfer appears to have been made before Spencer J or Judge Seymour.

Insofar, therefore, as it is either necessary or appropriate for us to consider the position in relation to the May order, I would not set it aside.

In any event, the order in relation to which the committal was made was the order of April 2014. If, as appears to be the case, the appellant was well aware of that order, it seems to me that it was open to His Honour Judge Seymour and Her Honour Judge Taylor to deal with the committal even if the order of 29th May had been, contrary to my view, in some way a nullity. On that footing they were still entitled to commit the appellant since they were entitled to exercise the jurisdiction of both the High Court and the county court.

The appellant also contends that the order of 10th April 2014, adding him as a second defendant and giving the Bank permission to file and serve the amended claim form, amended particulars of claim and amended possession order and requiring the appellant to give up possession forthwith, cannot be regarded as a reliable document. The reasons why the validity of this order is said to be doubtful are threefold.

First, it is said that the county court sought to excuse the errors in relation to the order of 29th May 2014 on the basis that the appellant had not been made a party to the proceedings, which, Mr Nicol submitted, implies that their understanding was that the order of 14th April 2014 was not made properly, or possibly even at all. That implication seems to be most unlikely. Whatever may have been said by the court staff in October 2014 about the May order and the failure to serve it, it does not follow that they would have said, or more importantly had any grounds for saying, that the order of 10th April 2014 was either not made or not made properly.

Secondly, it is said that, despite lengthy efforts, the appellant has not been able to obtain copies of the April 2014 order from the county court. It is not in fact clear exactly what enquiries have been made in that respect, but in any event we have copies of the order marked "Approved" in manuscript, signed and dated by the Deputy District Judge and sealed by the Willesden County Court. There is no good reason to doubt the authenticity of the order. Further, Judge Taylor records in her judgment that the order was in the court file. In addition, copies of the order were served in April 2014 in the manner which I have already described.

Third, it is said that there is no evidence that the court has ever approved the amendments to the possession order of 19th June 2012 because the copy provided by the respondent shows the appellant's name added to the title but still refers only to the defendant.

This ground is ill-founded. The form on which the order is typed had a box for claimant and a box for defendant, with a blank box to the right for the insertion of names. The original order had the name of Mr Shah in the box to the right with the word "defendant" in it. When the amendment was made, the appellant's name was inserted in manuscript below that of Mr Shah, but no "s" was added in manuscript to the typed word "defendant". It is plain, however, that the inclusion of the appellant's name by way of manuscript amendment in the box for the defendant meant, and was intended to mean, that he was the defendant who had been added, as was expressly provided for by paragraph 1 of the order of 10th April 2014.

In my judgment, none of the points made in relation to the April 2014 order have any validity.

It is not clear whether the judge or her predecessors explored the question of the appellant's legal representation. As to that, this court has recently pointed out in Brown v London Borough of Haringey, a decision given on 14th May 2015 and thus after the hearing before Judge Taylor, that the right to a fair trial at common law and under the ECHR is squarely engaged on any application to commit an individual to prison for contempt and it is highly desirable that such an individual should be legally represented. It is not clear whether the judge invited representations as to mitigation or whether Spencer J or Judge Seymour did so either.

In Brown v Haringey, McCombe LJ, giving the judgment of the court, saw force in the submission that in that case the judge should have adjourned the proceedings in the absence of proper exploration as to the appellant's entitlement to public funding and whether he truly wished to represent himself, or whether he wanted representation if it was available; and in the further submission that the judge was wrong immediately to pass to sentence on the second day of the hearing without considering whether sentence should be adjourned so that an opportunity for mitigation could be afforded to him, hopefully with the benefit of representation, at least for that purpose.

That was a case in which the question of representation had been raised on the first day of the hearing and in which the court had been apprised of the difficulties that had been encountered in seeking to obtain legal aid. In paragraph 41 McCombe LJ said this:

The enquiry that the judge had made appears to have consisted of the question: "Mr Brown, have you got any representation?".

The court in that case took the view that before passing sentence the judge should have considered whether to adjourn the case to secure the appellant's attendance and to make enquiries about the availability of representation at the adjourned hearing. That was a case in which the appellant, aged 80, was not present at all on the second day when sentence was passed, having been hospitalised.

I do not take that decision to be a decision that if the question of representation and legal aid is not sufficiently explored, the punishment imposed by way of committal should be set aside. It is, however, a factor to be taken into account, since if the applicant is without representation there is a prospect that that which could properly be said on his mitigation will not have been.

In the present case the contempt of which the appellant was guilty was serious in nature. It was a repetition of that for which he had just been committed to prison for three months and was carried out immediately after his release from that sentence. By the time of his latest contempt the appellant had re-entered the property on four previous occasions. As a result of his re-entry the Bank was prevented from carrying out an auction of the premises which was scheduled to take place on 29th January 2015.

The appellant now has the advantage of being represented by Mr Nicol. He has drawn to our attention the following points. The appellant had lived at the property for over ten years. He had been the sole carer of his elderly mother, who is now 79, and who since he has been in prison has been placed by his two sisters in a home. On any release he will be street homeless. Mr Nicol submits that the loss of his home and his relationship with his mother is more than sufficient punishment for what he has done. Further, as was confirmed to us by Miss Bowmaker on behalf of the Bank, the Bank has now in fact been able to sell the property.

The fact that the appellant had lived at the property for over ten years is not a justification for the contempts of which he was found guilty, nor is it, in my view, a mitigation of them. However, there is some force in the contention that the appellant has suffered enough. Having regard to all the circumstances, to the fact that no consideration as to representation appears to have been made, nor was any invitation to speak in mitigation apparently extended, and to the need to ensure that any sentence is no longer than it has to be, and to the fact that the sentence of ten months was over three times the length of the previous sentence, I have come to the conclusion that the appropriate course is that we should now order that the appellant should be immediately released.

LORD JUSTICE BEAN: I agree.