James v James

Judgment

LORD JUSTICE BEAN: In 2016 Mr Steven Mark James died intestate. He had two daughters who are the parties to this litigation; Hannah James (the claimant) and Naomi James (the defendant in the County Court, appellant in this court; I shall refer to her as "the appellant").

Mr James' estate, leaving aside £100 in a bank account, consisted of two pensions: a Standard Life pension in the sum of £10,787-odd and a National Health Service pension which turned out to be of a value just short of £65,000.

The claimant contacted Standard Life who advised her it could pay the pension without the need for a grant of representation. She and her sister received half each and nothing arises as to that.

When the claimant contacted NHS Pensions, however, they advised that to receive the death in work benefit lump sum there would need to be a grant of representation. They also emphasised that a claim had to be made within two years of first notification of the deceased's death.

The claimant applied for letters of administration in September 2016. It turned out that the appellant had done likewise. After some discussion between the two sisters the claimant agreed to withdraw her application - a decision which she must now be regretting.

In July 2017 the appellant, Naomi, was granted letters of administration. The claimant contacted her sister on a number of occasions, seeking an update as to progress. On the 31 October she received a text message in which Naomi stated that she had decided not to claim the NHS Pension. She had been advised this was completely legal.

The claimant consulted a solicitor who wrote to the defendant on 15 November 2017 asking her to confirm that the NHS Pension had been claimed and requesting distribution of the estate. It was sent by recorded delivery and signed for but no response was received.

The claimant issued a claim in the Chancery Division for an account for payment of the sums due to her and an order to remove Naomi as the administrator and/or an injunction requiring her to claim the NHS Pension. No response was received. An application was made to Master Marsh, who made an order that the appellant would be removed as administrator if the claimant provided a statement of fitness to act and a certified copy of the letters of administration. Those were supplied, and on 6 March 2018 Master Marsh made an order removing the appellant as administrator and appointing the claimant in her place.

Thus, as of 6 March 2018, the defendant has not been the administrator of the estate; but it is obvious that the obligations that she owed to the beneficiaries, specifically her sister, the claimant, continued in respect of any steps that she had taken while she was the person representative.

The case was transferred to the County Court. The claimant's solicitor made further enquiries of NHS Pensions, who on 21 March 2018 wrote to advise that the sum claimed had been paid in full to the appellant on 28 November 2017. That sum was later ascertained to be £64,864. On 27 March the claimant's solicitor wrote to the appellant requesting confirmation of her receipt of the pension and payment of half to the claimant.

There was further correspondence with the court and with NHS Pension. On 1 June the court was due to hold a case management conference. By an application lodged without notice the previous day (on 31 May) the claimant sought an injunction requiring the appellant to attend court to explain in detail what had been done with the money and a freezing injunction to prohibit the appellant from dealing with the assets of the estate until further order of the court.

The claimant by her solicitor attended the case management conference. The appellant did not. HHJ Gerald made an order that the appellant, Naomi James, was to attend at the County Court on 8 June with a witness statement, verified with a statement of truth, providing an account of her administration of the estate of Steven Mark James, including confirmation into what account the NHS Pension of Mr James was paid, details of all dealings she had had with the pension funds, and details of the recipient of any part of the pension funds including the identity of the recipient, the bank account to which any transfer was made, how much was transferred, when the transfer was made and the purpose of the transfer.

Although many judges would have refused to make such an order without notice (as opposed to fixing a return date of a week or so in advance and giving directions), the order once made had to be complied with unless an application was made to set it aside. No such application was ever made and, for my part, I can see no substantive grounds on which such an application could have succeeded.

The same day an application was made to serve the injunction order and accompanying documents on the defendant at her home. A process server says in his statement that the defendant's partner answered the door and said the defendant was at home but would not come to the door. The documents were posted through the letter box. The defendant's partner came to the side gate and confirmed she had received the documents. A covering letter drew the defendant's attention to the penal notice which was endorsed on the order in the usual form and recommended that she should seek legal advice.

The appellant did not attend the hearing of 8 June and did not comply with the order; indeed she has not complied with this order to this day. The claimant, by counsel, appeared at the hearing of 8 June and indicated an intention to apply at a future hearing for committal.

The case was adjourned to 6 July in order to enable a committal application to be issued and served on the defendant. That application was not made until 22 June. It was an application that the appellant be committed to prison for contempt of court on the grounds of her failure to comply with the order of 1 June.

Again there were difficulties about service, as often in cases of this kind. The process server, Mr Power, attended to serve the committal application at the appellant's home. He did so on 22 and 23 June, without success, but his evidence is that she was aware, after his visit on the 23rd, that the claimant had made an application to commit her for contempt. The documents were posted through the letter box on 25 June 2018. Mr Power states that the defendant was at home at the time and that it was reasonable to believe that the papers had come to her attention. At a subsequent hearing the judge made a finding that they had, and that finding is unimpeachable.

The documents were accompanied by a covering letter from the claimant's solicitors dated 22 June, drawing her attention to the nature of the application and concluding with this paragraph:

"You may wish to seek legal advice on the contents of this letter and the enclosed documents. Legal aid is available and you should contact the Legal Aid Agency if you wish to avail yourself of this opportunity."

The committal application was, as the letter said it would be, heard on Friday 6 July 2018. The defendant did not attend. The application was heard in her absence, with counsel representing the claimant. The judge had before him an affidavit of the claimant's solicitor enclosing the notice of application which quite sufficiently particularised what was alleged. He also had the witness statement of the process server, Mr Power.

The judge made an order in the following terms:

"AND UPON the Court being satisfied having considered the facts disclosed by the evidence before it that Naomi James has been guilty of contempt of this court by disobeying the injunction order dated 1 June 2018 by

(1) Failing to attend the hearing on 8 June 2018; (2) Failing to provide at that hearing a signed witness statement verified by a statement of truth providing an account of her administration of the estate of Steven Mark James... [the terms of the order of the 1 June were reproduced]

AND UPON the court being satisfied that the Defendant has had sufficient time to comply with the injunction order, has not complied with the order, and is deliberately refusing to obey the orders of the Court.

IT IS ORDERED that:

1. The Defendant shall be committed for contempt to HMP Bronzefield until such time as she complies with the injunction order of 1 June 2018 or until lawfully discharged, if sooner and that a warrant and arrest and committal be issued forthwith.

2. The defendant is to be brought before the Court at 12 noon on Wednesday 11 July 2018.

3. The Defendant can purge her contempt by compliance with the injunction order of 1 June 2018

4. The issue of costs of the application for injunction and application for committal are adjourned for consideration of the hearing on 11 July 2018 unless otherwise ordered."

The next step in the litigation was that the bench warrant was executed by the defendant being arrested on the 10 July and she was committed to prison in accordance with the judge's order. She was produced at court on 11 July 2018 for sentencing. Again, she was unrepresented. Her partner, Mr Jay, attended. We have the advantage of an attendance note of Ms Alison Meacher of counsel who appeared for the claimant at the hearings of 6, 11 and 13 July before the judge and has appeared before us. It is disputed in some respects, namely what passed between her and the appellant's partner, Mr Jay, but those disputes are immaterial for present purposes. What I will take from Ms Meacher's helpful note is what was said to and by the judge. Ms Meacher wrote:

"At the outset of the hearing I explained to the Judge that as far as I was aware the Respondent did not have legal representation. The Judge asked the Respondent if she knew why she had been arrested and brought before the Court. The respondent did not provide an audible response.

The Judge explained to the Respondent that she had been ordered by the court on 1 June 2018 to provide the details of where the NHS Pension had been paid to, and what had happened to it. The order included a penal notice that warned her that if she did not comply she could be arrested and sent to prison.

If once in prison she complied with the order by providing a statement explaining where the NHS Pension went, where it has been spent, she could purge her contempt. Prison is the punishment for not complying with the Court order.

The Judge said that the Clerk had told him that she had managed to speak to a solicitor yesterday. The Respondent responded by saying no, she had not spoken to a solicitor.

The Judge asked the Respondent if the prison given her information about a solicitor who could provide her with legal advice. The Respondent said no.

The Judge then spoke to the Respondent's partner, who was in Court. He gave his name as Mr Jay. He said that they were aware that the Respondent had breached the Court orders. He said that it was unfair to proceed with the hearing without the Respondent having the chance to get legal advice.

As the Respondent wishes to have the chance to secure legal advice the Judge said that he would adjourn this hearing until 10 am on Friday morning. The Judge asked the prison staff if there was a phone in the cells of the Court which the Respondent had access to. The staff said they did not think there was. The Judge asked the prison staff about access to legal advice in the prison. The prison staff said they did not know, as they only transport prisoners they do not work within the prison.

The Judge explained the adjournment meant that the Respondent is taken back to prison today and will be brought back to court on Friday. The Judge recommended that the Respondent or Mr Jay tried to contact a solicitor as soon as possible. The Judge asked the Respondent if she had any money. She said not. The Judge explained that she will be entitled to legal aid if she cannot afford representation. The Judge reminded the respondent that she had been provided with a bundle which includes the Court order which sets out what she needed to do to comply with it.

The Judge said that he will list the matter for Friday morning, but the Respondent could come back earlier if she secured a solicitor and the solicitor wanted to make an application on the Respondent's behalf. If relisted for Friday this would give the Respondent the opportunity to secure a solicitor and for the solicitor to acquaint themselves with the file.

What the Respondent needs to do is comply with the order of 1 June 2018. If she complies with the order she can make an earlier application to purge her contempt.

The original order notified the Respondent that legal aid is available to her."

Mr Jay then asked to be allowed to address the court and did so. The note continues:

"The Judge said to the Respondent that he strongly recommended that if she had access to the information that is sought by the Applicant that she provides that information and comply with the order of 1 June 2018. The Judge commented that he was sure that the Applicant, as the Respondent's sister, does not want her to be sent to prison, but the Respondent must provide the information required of her.

The Judge asked the Respondent what she had done with the NHS Pension. The Respondent said that it had been received into one of her bank accounts. The Judge asked what she had done with the money. She said that she had distributed the £60,000 to some charities that were relevant to her father. The Respondent did not give any names or details of the charities...

The Judge asked the Respondent if the money had been paid into the charities' bank accounts and if she had receipts. The Respondent said no...

The Judge asked the Respondent if she had copies of her bank statements showing the withdrawal of the NHS Pensions. Did the withdrawals add up to the £66,000 that had been paid up to her? The respondent said that she was not sure.

The Judge commented that if there were 5 charities this was £12,000 each. The Respondent said it was not an equal [amount] to each. The Judge asked how long it took to spend this money. The Respondent's reply was inaudible. The Judge asked if the money had been spent before these proceedings were issued. The Respondent said yes.

The Respondent said she had a file of papers in a plastic bag in the cell which contained all the information she had about the NHS Pension. The Judge asked if Counsel for the applicant could see these documents. The respondent replied yes.

The Judge asked if the documents included her bank statements showing where the money had gone to. The Respondent said she was not sure.

The Judge asked where the bank statements would be if not in the bag in the cell, the Respondent said the documents would be at home. The Judge asked who else lived with her, the Respondent said Mr Jay. Mr Jay interjected by saying there were no documents at home. The Respondent had taken all the NHS Pension documents with her when she was arrested.

The Judge asked the prison staff to confirm if the Respondent had any papers with her in the cell. The prison staff confirmed she had an inch worth of papers in a plastic bag. The Judge asked the prison staff if arrangements could be made for the documents to be given to Counsel, for Counsel to copy them and for the documents to be returned to Counsel. Prison staff said that this was possible if this is what the court directed. The Judge asked Counsel for the applicant [that is for the claimant] to obtain the documents, copy them and return them to the respondent. Counsel agreed.

The Judge decided that the Respondent should return to prison and be brought back before the Court on Friday for a hearing at 10am."

For whatever reason, no documents were in fact handed over. So the matter came back before the judge on the 13 July initially in the morning. Again, the appellant was unrepresented. Efforts were made to obtain a solicitor but these were unavailing. So the matter came on before the judge at 4.00 pm. The appellant asked for an adjournment to obtain legal representation. This was refused, as the order which the judge made recites.

The order, so far as material, reads:

"UPON THE DEFENDANT having been arrested and committed to prison on 10 July 2018 and produced at Court for the hearing at midday on 11 July 2018 for sentencing which was adjourned to 10am on 13 July 2018 to give the Defendant a further opportunity to obtain legal representation and furthermore for Mr Jay to seek to obtain representation for the Defendant AND FURTHER that the matter did not come on for hearing until 4pm 13 July 2018 as the court staff unsuccessfully attempted to obtain legal representation for the Defendant.

AND UPON IT BEING RECORDED that the Defendant confirmed that she had not (contrary to what she said she would do on 11 July 2018 hearing) permitted the Claimant's counsel to take copies of the documents relating to the receipt and disposition of the Pension Funds in question (specifically, her bank statements) which she said she had in a plastic bag in the cell within the Royal Court of Justice BECAUSE, she told the court, there were no relevant documents in that bag and that all relevant documents were at the home she shared with Mr Jay BUT THAT Mr Jay later interrupted proceedings to state that no relevant documents were at their home but they were all with the Defendant in her cell.

IT IS ORDERED THAT :

1. The Defendant's application for an adjournment to obtain legal representation is refused.

2. The Defendant be sentenced to 6 months in prison to be calculated from 10 July 2018 and be committed to HMP Brownfield.

3. The Defendant may apply at any time to purge her contempt by complying with the injunction order of 1 June 2018 in which event the court will determine whether and if so when the Defendant should be released early from prison THE COURT MAKING CLEAR TO THE DEFENDANT THAT THE SOONER SHE FULLY AND ACCURATELY COMPLY WITH THE 1 JUNE 2018 ORDER the more likely the court would be to deal sympathetically with such application and permit early release.

4. The Defendant do pay the costs of the application for injunction and application for committal to be assessed on an indemnity basis if not agreed."

We have an unapproved transcript of the judge's judgment, which can be taken as replacing and closely corresponding with counsel's note of the judgment made by Ms Meacher at the hearing. I will not read out large tracts from it. Some of the findings are contained in the recitals to the order which I have read out. The judge asked himself whether it was appropriate in this case to proceed to sentence in the circumstances where the defendant does not have legal representation. He said that all that needed to be done was for the defendant to answer the simple questions: Where is the £66,000? Where has the money gone? Where is it now?; and a witness statement with any relevant documents was to be disclosed. He took into account that the defendant appeared to be a clever and articulate lady who fully understood the nature of the proceedings.

He considered what would be an appropriate sentence to pass and came to the conclusion that it should be 6 months. He said that there was no alternative but for the sentence of imprisonment to be immediate. It would be inappropriate for there to be a suspended sentence. He gave a number of reasons for that. Firstly, £66,000 was a considerable sum of money and the claimant appeared to be entitled to at least half of it. Secondly, the explanation provided by the defendant that she had given away all the money in cash to charities whose names she could not recall was, as the judge put it, distinct from the evidence and he found it troubling. (For my part, I would go further and say it is plainly incredible. But to continue with the judge's observations:) Thirdly, he took into account the differing explanations of where the documents were, whether in the cell and in a plastic bag or at home and so on. Fourthly, he found that the defendant had acted deliberately and intentionally. Fifthly - this is a separate point - he had the impression that something untoward had happened to the money. Sixthly, the only person who could explain where the money has gone was the defendant and seventhly, he found the defendant was fully aware of the seriousness of the breach. He imposed a sentence of 6 months' imprisonment but again emphasised that if the appellant purged her contempt she could apply to the court to be released.

The appellant did not apply to the court to purge her contempt. For my part, I find that startling, particularly if, as I am told is the case, a representation order was made or notice of acting was given by her present solicitors by 18 July. At any rate it was not until 3 August, 21 days from the hearing of the 13 July, that a notice of appeal, which of course is as of right, was lodged in this court. An application to purge the contempt could no doubt have come on much more quickly and it is not clear why the notice of appeal took three weeks to draft. At all events, it is now before us.

Three grounds of appeal are helpfully set out in an advice drafted by Mr Dixon of counsel. Firstly, the appeal notice states that it is an appeal against the order of HHJ Gerald on 13 July 2018 to commit the appellant to prison for contempt of court for a period of 6 months. The appellant applies for an order that the order for committal to prison for contempt be set aside. The three grounds given are (i) the appellant was sent to prison in the absence of legal advice or representation; (ii) the court failed to take account of mitigation relevant to the appellant and (iii) the court did not take account of the best interests of the trial principle. It is submitted therefore that the decision to commit the appellant to prison was wrong or the length of the committal is excessive.

There was an application for legal aid which the Civil Appeals Office granted without any delay. There was also an application for bail but, sensibly, that was not pursued in the light of an indication that the case would be listed for today. We have had the advantage of submissions today by Mr Abid Mahmood, for the appellant, and Ms Alison Meacher, for the claimant.

By a new skeleton argument lodged yesterday, supported by his oral submissions, Mr Mahmood sought an extension of time and leave to amend the notice of appeal (a) to appeal against the committal order made on 6 July as well as that made on 13 July and (b) to appeal against the finding of contempt. He gave seven reasons why we should do this. Firstly, the process server's evidence, which was before the judge on the committal application, about service of the application to commit and of the notice of the hearing was only in the form of a witness statement of the process server not an affidavit. Secondly, the appellant was not advised of her right to silence. Thirdly, the proceedings were not in compliance with the European Convention on Human Rights. Fourthly, the judge's judgment did not contain any finding that he was satisfied of the alleged contempt beyond reasonable doubt. Fifthly, there was no good reason to shorten the time period of 14 days' notice which should have been given for the hearing on 6 July. Sixthly, the order of 1 June 2018 was not an appropriate one to be made without notice and seventhly, the appellant was a vulnerable litigant or witness.

Mr Mahmood submits that all these factors should have been taken into account when deciding whether to go ahead with the hearing and if they had been brought to the judge's attention, he could and perhaps would have taken a different approach.

I would allow an amendment to the notice of appeal on point (a), that is to say it should be treated against an appeal against the order for committal made on 6 July and its brief renewal on 11 July in so far as that has any separate existence, as well as against the order of committal made on 13 July. Even though the order of 6 July has now been subsumed in the order of 13 July, it is right to view the three hearings as a whole. There is an additional point made by the court (and not by present or previous counsel) in relation to the 6 July order, namely that it did not comply with the Contempt of Court Act 1981. I shall come to that later.

I would however refuse permission to amend the notice of appeal to allow the appellant to challenge the recitals in the judge's order of 6 July, in particular, the finding by the judge that the appellant was in contempt of court by failing to comply with the order of 1 June. I reach that conclusion because there is nothing in the material placed before us to suggest any basis for challenging that finding of contempt. As I have already noted, the mandatory injunctions contained in the order of 1 June were binding and had to be complied with unless and until an application was made to the court to set them aside.

Whether the appellant believed that nothing worse could happen to her than having a money judgment entered against her is entirely beside the point: all the more so because the order was endorsed with a penal notice making it clear to her what the consequences should be.

In answer to Mr Mahmood's seven points:

I now proceed to consider the order for committal on the 6 July and the subsequent order or orders in the light of the grounds of appeal and the further point raised by the court..

The order for committal made on 6 July was defective because section 14(1) of the 1981 Contempt of Court Act requires that any such order should be for a fixed term. This is not a matter of discretion, it is a mandatory requirement of the statute. The judge would have been justified, subject to the point about 14 days' notice, in issuing a bench warrant, but he should not have made an order for committal for an indefinite period.

Turning to the hearing of 11 July, the judge was clearly right to advise the appellant to obtain legal representation but it is unrealistic, in my view, to have supposed that she could successfully do this from prison in one-and-a-half days. The obligation under paragraph 15.6 of Practice Direction 81 appended to CPR 81 is an obligation on the court to have regard to the need for the contemnor to be made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency, and to the need to give an unrepresented contemnor the opportunity to obtain legal advice.

In Haringey London Borough Council v Brown [2017] 1 WLR 542, at [46] McCombe LJ said:

"46. At least until some improvement is made to the drafting of the legislation...it seems to me that it is important that all involved in committal proceedings in the County Courts should be aware of the route to be taken in applying for legal aid in such proceedings. For my part, I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are. It may be that, as Mr Bridge submitted here, consideration should be given to the promulgation of standard directions on the subject, either on the application notice itself and/or in any preliminary order regulating the procedure in an individual case."

I would echo that. It would surely not be rocket science for a court centre such as Central London County Court to have a standard handout to be given to contemnors in Ms James' position, not simply saying: "You have a right to legal aid" but giving practical assistance about how and to whom an urgent application should be made.

Returning to the present case: as the judge observed, it is right that the appellant's partner, Mr Jay, was present and not in custody. It may be that he had a better opportunity than the appellant herself to make contact with solicitors but I do not think the fact that he might have had such an opportunity, or might have taken it up had he been more co-operative, is a valid answer to the point about the need for legal representation. As I have already emphasised, the obligation under PD 81 paragraph 15.6 is an obligation placed on the court, not on the contemnor's partner or family.

We now come to the hearing on the afternoon of the 13 July. Mr Mahmood complains, and I have already said that I have sympathy with this point, that it was unrealistic to suppose that the appellant could successfully obtain legal representation in one and-a-half days while in custody. Ms Meacher submits however, that the period from 11 to 13 July should not be viewed in isolation. The appellant had been aware, at least from 25 June, of the need for legal representation. She reminded us of the covering letter from the claimant's solicitors, served with the application notice advising her to seek representation.

I agree with Ms Meacher's description of the appellant's conduct as being an example of burying her head in the sand. Indeed, that is only part of the story. Her unco-operative and, it might be said, devious behaviour, in first telling the judge at the hearing of 11 July that she had the relevant documents in a plastic bag and then refusing or failing to hand over any documents at all, was deplorable. She emerges from this litigation so far with no credit at all. Nevertheless, I do consider that the judge was wrong to proceed to impose a sentence of immediate custody on an unrepresented appellant on 13 July.

I do not consider that this appellant should have been the subject of an order for committal, as opposed to the issue of a bench warrant if she failed to attend court, until she had had a proper opportunity to have a solicitor or barrister make representations on her behalf to the court, or alternatively until she had expressly been given that opportunity with one adjournment and then deliberately failed to take reasonable steps to obtain legal representation.

It follows that, in my judgment, the orders for committal of 6 July and 13 July must be set aside and the case remitted to the County Court for another circuit judge to determine the application for committal.

I make it clear however that the findings of Judge Gerald recited in the order of the 6 July are to remain binding. I would add that in his submissions today Mr Mahmood volunteered to us that “without a shadow of a doubt” (in his words) his advice to his client, who has not been present today, will be to “get on with the witness statement”. If she complies fully, even at this late stage, with the order of the 1 June, I would not expect the committal application to result in any further period in custody. I would hope that with sensible advice from her experienced counsel and solicitors, she will even now see sense. Indeed that is one of the reasons, in my judgment, why there is such heavy emphasis in the Rules and Practice Directions on the court seeking to ensure that a contemnor has legal representation, because it is possible that advice from lawyers can persuade even as difficult and obstructive a litigant as the appellant to see sense.

But that is only a hope I can express. If the appellant does not comply with the order of 1 June, does not seek to purge her contempt and simply buries her head in the sand again, then, in my view, on the renewed application to commit, the sentence would be entirely at large. We are not passing sentence today. Mr Mahmood, quite rightly, did not suggest that the fact that a contemnor is the primary carer for young children grants absolute immunity from any prison sentence. In my view if on the remitted hearing the appellant’s stance remains one of defiance then the fact that she has so far served between 3 and 4 weeks in custody would not be an answer to an application for a further period of committal.

LORD JUSTICE DAVID RICHARDS: I agree with all that my Lord has said and for the reasons that he has given, I too would allow this appeal to the extent that he has indicated.