Boys & Maugham (a firm) v Moore

That forms the background to the orders sought to be enforced by way of a committal as follows. So far as Count 1 is concerned, on 22 January 2020 HHJ Brown made an order which provided that Mr Moore should attend the County Court at Canterbury on 18 February 2020 before a judge at 10.00 am to provide information about his means and any other information needed to enforce the judgment order, and by paragraph 2 that:

I can pass over Count 2 and the court orders that form the basis of it, as HHJ Brown found that that was not proved, and it is not necessary to refer to Count 2 again.

So far as Count 3 is concerned, on 8 June 2020 HHJ Brown made an order which included at paragraph 3 an order that:

So far as Count 4 is concerned, that is based on a series of orders as follows:

firstly, the Order of 22 January 2020 of HHJ Venn, paragraph 2, which I have already referred to under Count 1;

secondly, an Order of HHJ Brown dated 18 February 2020, paragraph 4 of which reads as follows:

thirdly, the Order of 12 March 2020 of HHJ Brown, paragraph 6 of which provides:

Count 4 alleges a breach of those three orders as follows:

I will say at once that although this is not a point that has been taken by Mr Moore, Count 4 seems to me to give rise to a question whether the count is properly framed, as it seems to me to allege breaches of three different orders. Although each order required Mr Moore to provide documentation in similar terms, they are not identical and in particular they required Mr Moore to produce documents at different times. The

Mr Moore, who has appeared before us in person, has not addressed us orally but has submitted a number of written documents starting with his skeleton, which is where I will go to identify the issues that he has taken. At paragraph 8 of his skeleton, under the heading of “The facts”, he first submits that he did not receive a fair hearing, and under that head he identifies a number of different matters which he relies on.

The first reads as follows: “Disability, reasonable adjustments, not permitted to obtain expert evidence when that has been organised”. Mr Moore has provided a medical report from his GP, Dr Cleverley, dated 10 April 2020, which states that he was first diagnosed as having anxiety and depression in 2007 and that the first mention of posttraumatic disorder in his notes was in 2017, when he disclosed that he had been in an abusive relationship for over three years. This worsened in late 2018 through 2019. The report indicates that he does not suffer from any other medical conditions. Dr Cleverley says:

By Order dated 16 May 2020, HHJ Brown directed the listing of a ground rules hearing and directed Mr Moore to serve proposals for reasonable adjustments. That was a hearing at which he was represented by counsel, and the ground rules hearing took place on 8 June 2020. Again, Mr Moore was represented by counsel. Paragraphs 5 and 6 of the order made on that occasion by HHJ Brown were as follows:

Nothing in Mr Moore’s skeleton or in the other written material that he provided to us suggests any particular adjustment which was unfairly refused. In fact, when it came to the hearing on 27 August 2020, the judgment of HHJ Brown included at [5] the following assessment:

The next head in the skeleton is that it was unjust, unreasonable and unfair of the Judge to expect the appellant to cope, especially as he was a litigant in person of no fixed abode suffering from mental health issues. Mr Moore appeared in person on 18 February 2020 and asked for an adjournment to obtain legal advice. That was granted by HHJ Brown, and in her order she not only recited that the Defendant was informed that legal aid might be available for him but also provided in the substantive order that the hearing be adjourned so that he might obtain legal advice. On 12 March 2020 he was represented by solicitors and counsel, as he was also on a number of further hearings in April and June, and on 7 August. On 27 August 2020, which was the substantive hearing of the committal application, what happened is referred to in the Judge’s judgment at [8], when she said:

As to the mental health issues, I have already referred to the extent of the medical evidence that was before the Court and the conclusion of the Judge, which seems to be well-founded, that although Mr Moore did have some psychological issues, he did not lack capacity and could understand what was going on and what was required of him.

The next point under this head taken by Moore is that he is covered by FPR 29.1. That is a reference to the Family Procedure Rules, the particular rule providing that a party is not required to reveal certain personal details. The Family Procedure Rules apply to family proceedings. Neither the underlying ToLATA proceedings, nor these proceedings, which were to enforce a claim for a debt, were family proceedings, and the Family Procedure Rules have no application.

The next point taken by Mr Moore is as follows. Regarding disclosure, it was unjust and unreasonable and unfair of the Judge to expect the appellant to be in a position to defend himself when there were such serious disclosure problems in the case. Various details of that are given and that has been further elaborated in other documents which Mr Moore has provided us with during the course of the hearing. What it comes to is that Mr Moore complains that the Claimants have not provided proper disclosure. There is in my judgment nothing in this complaint. It is very doubtful if the Claimants ever came under any disclosure obligations in these proceedings, as they obtained judgment in default and usually that would take place before any obligation to disclose had arisen. But even if they had been, it would make no difference to Mr Moore’s liability for contempt.

The liability of a person for contempt depends on three things: (i) what orders have been made against that person; (ii) whether he has complied with those orders; and (iii) whether he had the requisite knowledge to be guilty of contempt. The requisite knowledge is set out in many places but can conveniently be found in the recent judgment of Henshaw J in Dell Emerging Markets (EMEA) Ltd v Systems Equipment Telecommunications Services SAL [2020] EWHC 561 (Comm) at [21] where he said:

Head (e) under this heading of unfair hearing is “Fake and false claims made by a regulated firm”. Again, some details are given, the general thrust of which is that the Claimants misled the court. I should make it clear that the Claimants naturally do not accept this, but even if it were the case, again it does not in my judgment affect the liability of Mr Moore for committal. Again, the law is very clearly established. It can be found among other places in the judgment of Lord Diplock in Isaacs v Robertson[1985] AC 97 at 101 approving the passage of Romer LJ in Hadkinson v Hadkinson [1052] P 285 at 288:

The next heading in relation to this ground is that there is an unfair, important anomaly in legal aid and representation regarding a civil case where legal aid has been granted in respect of an application to commit for contempt. Mr Moore says that Tuckers (his solicitors) said that they were not paid by legal aid to raise civil issues, even though they realised and were warned that the Respondents were misleading the court, and that a solicitor should be ready to raise matters when it comes to solicitors misleading the Court rather than just saying they cannot deal with it because they are not being paid to raise those issues. This, if anything, seems to me to be a complaint against Tuckers, but I will say at once that it does not surprise me that solicitors acting on legal aid in a committal application (for which legal aid, which is criminal legal aid, is available) should decline to deal with other aspects of civil litigation for which legal aid is not available and which they would not usually be instructed on. But in any event, again, it does not affect the question, which was the question before HHJ Brown and is the question before us, whether Mr Moore did or did not commit the contempts with which he was charged.

The next head relied on by Mr Moore is CPR Part 71, whereby, cross-referenced to his grounds of appeal, Mr Moore complains of a number of what are said to be failures to comply with the rules of CPR Part 71. CPR Part 71 does provide for very limited circumstances in which a committal application can be made against a debtor who has been summonsed to an oral examination. But in this case the committal application was not brought under CPR Part 71 but under CPR Part 81. That was something expressly decided by HHJ Brown on 29 June 2020, as appears from recital 7 to her order which reads:

As to the specific points which were taken in his grounds of appeal under this head by Mr Moore, under Count 1 he took a point on service, saying that service was short service and the documents were not served personally on him. The Order of 29 January had provided for substituted service. Mr Moore says he only saw the documents the day before, but HHJ Brown found in her judgment at [15]:

Under Count 3, Mr Moore alleges that he has evidence that the debt had been settled dating back to February 2020, referring to something which we have not seen as it was a private record of the parties and relying on the fact that the Respondents had failed to challenge it. That is not something which is accepted by the Respondents, and we, as I have said, have not seen evidence of any settlement. But in any event, on Mr Moore’s own account, all that he says it did was to discharge the orders up to February 2020. I

Under Count 4, Mr Moore complains of a failure by the Claimants to comply with the Order of HHJ Brown of 18 February 2020, which ordered them to file and serve at least three days before the adjourned hearing a bundle containing all the relevant documents, applications, orders and evidence. I will assume he might be right that there were deficiencies in compliance with that order, but I do not see that that explains or excuses or takes away from the fact of Mr Moore’s own failure to comply with the orders listed under Count 4 and in particular the Order of 12 March 2020.

Going back to his skeleton argument, the next head relied on by Mr Moore is CPR Part 81. Here he says that to be convicted of contempt of court, the conduct must be a voluntary act. He says that his conduct was not voluntary: this all happened because there were so many things wrong all the way through to the lead up to the hearing of 27 August 2020 and that it was an unfortunate circumstance that the very dominant behaviour of the Respondents misled everyone and created complete breaches of the Rules. No breaches of the Rules are here specifically identified, and in any event the clear finding of HHJ Brown was that the failure of Mr Moore to comply with the various orders was in each case deliberate. That is sufficient to amount to voluntary conduct within the meaning of the authorities. We have not been shown anything to suggest she was wrong to reach that conclusion.

Mr Moore then says that procedural errors were made under CPR Part 81, but that allegation is not particularised at all.

In submissions during the hearing before us, which were all made in writing because of Mr Moore’s reluctance or inability to address the Court orally, Mr Moore took a number of other points. It is not necessary to go through them all one by one. They confirm insofar as there is anything new that Mr Moore suffers from a profound sense of grievance, but they do not add anything to the substance of the appeal, nor do they address singly or taken together the questions which are the questions which arise in

In his skeleton Mr Moore makes a general plea that the Judge was wrong to find the contempts proved beyond reasonable doubt and says that the Judge was wrong in law in not holding that his defence was made out, though indeed he does not here specify what his defence was.

Having considered all the material put before the court by Mr Moore, I have reached the conclusion that there is nothing in that material which suggests that the Judge erred in her careful and thorough judgment or was not entitled to reach the factual conclusions that she did reach. Subject to the one point I mentioned earlier on duplicity, I would dismiss the appeal.

So far as the point on duplicity is concerned, Mr Snow, who appeared for the Respondents to the appeal, put forward as his primary submission that there was in fact no failure to comply with CPR r 81.10(3)(a) because the conduct alleged was all the same conduct, namely the failure to provide the relevant documentation. I have already indicated that I have difficulty accepting that. It is well established that a mandatory order which requires a person to do something by a particular date is broken once and for all when they fail to do it on or by that date: see re Jones [2013] EWHC 2579 (Ch) at [20]-[23] per Sir James Munby P, and my own judgment in Kea Investments Ltd v Watson [2020] EWHC 2599 (Ch) at [71]-[73]. That means that the three orders, as I referred to earlier, did contain different obligations, each requiring Mr Moore to provide the documents on different occasions, and there were in my judgment three separate acts of contempt, and they should have been charged as three separate acts, although it may be noted that the failure to comply with paragraph 2 of the first order, that of 27 January 2020, had already in effect been charged as Count 1 and should not in my view have been charged again.

The question is what we should do in those circumstances. Mr Snow’s second submission was that we should exercise the dispensing power now found in Practice Direction 81 – Applications and Proceedings in Relation to Contempt of Court at paragraph 16.2, which reads as follows:

I for my part would accept the submission that no injustice has been caused to Mr Moore by the defect. I would treat Count 4 as if the references to the two earlier orders were otiose and should be struck out of it and that Count 4 should be read as if it only charged failure to comply with the third order, that is, paragraph 6 of the Order dated 12 March 2020. That does not seem to me to be unfair or to cause any prejudice or difficulty to Mr Moore, specifically for two reasons. Firstly, although all three orders are recited, the allegation is that he had failed to comply with them by failing to provide the documentation by 4 pm on 26 March 2020, that is a breach of the third order; and secondly, because of the way in which HHJ Brown dealt with this in her judgment at paragraph 28, where she said:

I agree with the judgment of Nugee LJ and simply add a few observations of my own. This case has been listed to come on for a hearing in this court for some time. In the preceding week, Mr Moore has submitted a number of written requests and applications seeking a stay or an adjournment or a ground rules hearing and things like that, all of which requests were declined by this court. Today Mr Moore, appearing in person, has further sought a stay, which this court refused. One reason which he advanced for needing a stay was, as he said, that he had not a chance to digest all the relevant documentation and, what is more, there was much more documentation to be obtained. That is completely by the way. This appeal hearing is not designed to be an opportunity for Mr Moore to reargue his case all over again. The position is to be assessed as it was before Judge Brown. Indeed, Mr Moore’s requests for documentation underline how flawed his whole approach is. He clearly bitterly resents the conduct of the claimant firm. He has taken the view that they were negligent or misconducted themselves in the original transactions on which he had instructed them, and he has taken the view, it seems, that they have been evasive, lacking integrity, lying to the court and so on in the proceedings to recover the debt due to them and in the proceedings thereafter.

But that, as my Lord has pointed out, is nothing to the point. The point is that orders of the court were made. It is not for Mr Moore then to refuse to comply with them simply because he does not himself agree with those orders. Those orders having been made, and they have never been successfully appealed, he has to comply with them. As Judge Brown found on the evidence, applying the criminal standard, she was sure that he had deliberately not complied with them. That answers virtually all the criticisms which Mr Moore now seeks to pursue, which in truth are irrelevant to what really matters now. Mr Moore ought clearly to understand his position. He must comply with those orders. It is no good him saying that he does not agree with those orders. If he does not comply with those orders, and if he continues to maintain his current stance, not only will he continue to incur further costs liabilities but in addition he may find that the suspended sentence is activated and he may go to prison. He should be very careful to avoid such a consequence. Therefore he should even now comply with what he is required to do under the relevant orders.

For the reasons given by my Lord (and I also agree with him about the waiver point) I too would dismiss this appeal.