CIVIL COMMITTAL PROCEEDINGS: STILL A MAJOR PROBLEM: PROCEDURAL ERRORS ARE “INEVITABLE”

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We have had graphic examples recently of cases where committal proceedings in civil, or family, proceedings have gone badly wrong.    In LL -v- Lord Chancellor [2017] EWCA Civ 237,   the Court of Appeal held that the procedure adopted on committal amounted to a “gross and obvious procedural irregularity” so as to enable the claimant to pursue damages against the Lord Chancellor. A case decided last month highlights the very real difficulties that judges face in relation to these proceedings. Here we look at them both.

LL -v- THE LORD CHANCELLOR

The Court of Appeal allowed an appeal and allowed the claimant to bring damages against the Lord Chancellor after he had been sent to prison by way of committal order.  The judge held that the conduct of the committal proceedings amounted to a “gross and obvious irregularity”.

THE JUDGMENT OF LADY JUSTICE KING

Lady Justice King :
  1. I agree that this appeal should be allowed for the reasons given by Lord Justice Jackson and would, in particular, wish to associate myself with the observations he made at paragraph 9 of his judgment in relation to the task of the family judge. The work undertaken by the family judges is unremitting and takes a particular toll on those judges who have a diet made up largely of care cases.
  2. The present case concerns a High Court Judge. High Court Judges assigned to the Family Division however represent only the tip of the family law iceberg. Up and down the country in each and every Family Court there are scores of Magistrates, District Judges and Circuit Judges hearing family cases covering the wide range of work over which they have jurisdiction.
  3. District Judges for example have a constant stream of litigants in person; as a consequence there is often no lawyer in court to assist the District Judge to put right any of the errors, procedural or otherwise, which he or she may inadvertently make. Such errors are, from time to time, inevitable given the breadth of the jurisdiction with which judges are dealing. Circuit Judges also often have unrepresented litigants, but they have the burden of hearing the longer cases, often listed back to back; in addition, they are not infrequently allocated High Court cases which are released to them for trial due to the difficulty in having cases listed in front of High Court Judges within a reasonable length of time.

FESTIVAL HOUSING -v- BAKER

The difficulties that judges face is evident in the judgment of District Judge  Mackenzie in Festival Housing Limited -v- Baker [2017] EW Misc 4 (CC).   The decision pre-dated the LL case. However the District Judge expressed misgivings which apply to many similar cases.

THE CASE

The claimant applied to commit the defendant to prison for breach of an injunction. (The defendant was sentenced to 26 weeks in prison). In the opening paragraphs of the judgment the District Judge outlined the concerns that applied to committal applications generally and this case in particular.

THE JUDGMENT

DISTRICT JUDGE MACKENZIE:
  1. This is a committal application for Ms Marie Baker in connection with two alleged breaches of an injunction on 25th November last year and 2ndJanuary this year.
  1. As I have already indicated, and I will come to in more detail in a minute, I find the two breaches proved but before coming to the history of how we got to this point, let me say this:   I am disturbed and concerned that Ms Baker attends before me today without the assistance of any public funding or a solicitor.  I am particularly concerned about that because on any view, Ms Baker is a fragile individual; has difficulty reading and writing; difficulty in understanding, though I have no evidence or indication to indicate to me that she lacks capacity to deal with matters.   She is, however, a fragile and vulnerable individual and that makes it all the more regrettable that she has not got legal assistance.
  1. I had to consider very carefully before I proceeded today, whether it would be right and proper to proceed when she wants to have a solicitor and has not got one.  As I will explain in a minute, there has been a history to this case when she has had difficulty in getting solicitors before.  I have to consider whether her human rights are irrevocably impinged, so that a fair trial cannot take place in this case, without her having legal advice.  I have to say, I come very close to forming that conclusion, and I have explored that at the beginning of today’s hearing.
  1. Ultimately, I have reached the conclusion that she can have a fair hearing, and that every opportunity has been afforded to her to prepare a case with assistance from a solicitor, but through no fault of her own, she has not been able to secure that.  I am conscious that in earlier proceedings, particularly those before His Honour Judge Plunkett in September last year, when a Committal Order was made for, effectively, three months, that she did not have access to a solicitor at that stage.
  1. The present run of breaches, going back to November, first came before me in December.  From that time forward, efforts had been made to try and secure a solicitor for Ms Baker, but all those efforts have failed.  On the last occasion, the remand hearing a week ago, I specifically directed that the court must use every effort to try and contact local solicitors to see if they were prepared to take her on.
  1. That followed difficulties over the Christmas period when the matter first came before me on 23rd December in the immediate run up to Christmas.  There was no solicitor available to deal with the case for Ms Baker.  I remanded the case on bail until 29th December, and with very considerable effort, a solicitor in Redditch was found who seemed prepared to take her on, but was unclear about his ability to get legal aid.
  1. Three of four years ago, the President of the Family Division made it clear that legal aid in these sort of cases, though it is for a civil contempt, is criminal legal aid.  That has caused some difficulty, because of the way legal aid works with solicitors getting fragmented franchises for dealing with specific types of work.  This court has experienced, on more than one occasion, great difficulties in getting a solicitor who is prepared to deal with criminal legal aid for a committal in breach of Housing Act injunctions.  It has proved somewhat difficult.
  1. It proved an impossible position for Judge Plunkett last September and it has proved impossible now to secure a solicitor for Ms Baker, despite efforts taken by the claimant and by the court and Ms Baker’s own efforts. It is wholly unsatisfactory that the system conspires against a vulnerable individual like this, so that she cannot get the legal aid and solicitor assistance that she really needs.
  1. It is in that background that I have had to consider very carefully whether it was right to proceed, in potential breach of Ms Baker’s human rights, with a fair and proper hearing.   Particularly I had to bear in mind, that the nature of her defence, from questions I asked on previous occasion, appeared to fall into four categories.  Firstly, she appeared to say that she had an alibi for both incidents.  That she was elsewhere and can produce evidence in support of that.  Secondly, she was arguing that this was a case of mistaken identity.   Thirdly, she has been arguing that she thinks the police officer in this case, WPC Lane, has, to quote her words, ‘got it in for her’, and that, consequently, is an argument of potential police oppression.  Fourthly, a suspicion that there might be some CCTV footage that, if obtained, would exonerate her.
  1. All those matters, potentially give rise to a line of defence which would better be explored by a solicitor assisting her.  Knowing that, it is with great reservation that I have allowed the case to proceed today on the basis that it would be impossible to keep adjourning this case.  I have taken the view that all those aspects of a potential defence could be explored satisfactorily, given the factual matrix of this case.   So I have proceeded to deal with this committal and, as I have already said, I found the two breaches proved…”

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