I have written several times about the problems in obtaining representation and funding for civil committal proceedings.   The judgement of the Court of Appeal yesterday in Devon County Council -v- Kirk [2016] EWCA Civ 1221 exemplifies the difficulties and dangers.   It also shows the tenacity of counsel, acting pro bono.” It shows the failure of a system.


“Of greatest concern, however, is the fact that, in circumstances where she should never have been committed at all, Mrs Kirk languished in prison for almost seven weeks before being released. And, as my Lord has pointedly observed, how much longer might she have remained there had Mr Challenger not intervened and been so tenacious in his pursuit of her release? A proper system should not permit this to happen. The fact that it did happen here suggests that the systems in place are not adequate.”


The Court of Protection made an order for committal against the respondent, who was refusing to sign documents.  The respondent was committed to prison.  An appeal was made to the Court of Appeal.


The contempt proceedings
  1. The contempt proceedings came on for hearing before Mr Justice Newton on 18th August 2016. At that hearing Mrs Kirk, who had appeared as a litigant in person before Baker J in June, was represented by solicitors and counsel. The hearing took place in open court.
  2. By that time (on 13th July 2016) Mrs Kirk, acting as a litigant in person, had issued a Notice of Appeal in the Court of Appeal against the June 2016 decision of Baker J. The box on the Notice of Appeal form relating to an application for a stay of execution had not been ticked. This court has been told that the application for permission to appeal had become stalled in the Court of Appeal because of the absence of a transcript of Baker J’s judgment and because neither of the teams of legal representatives acting for Devon County Council and the Official Solicitor (representing MM’s interests) had an adequate note of Baker J’s oral judgment. The application for permission to appeal remained outstanding until the present hearing before this court and I will turn to consider it in the final section of this judgment.
  3. Newton J was told of the application for permission to appeal. The court was also, correctly, told that there had been no application to the Court of Appeal for a stay of the June order.
  4. Having heard submissions Mr Justice Newton gave judgment. Having recorded the relevant background and, in particular the two recitals from the June order to which I have referred, he went on to record the agreed fact that the order had not been complied with in that the relevant document of authority had not been signed by Mrs Kirk. The judge then referred to her pending application for permission to appeal:
“15. I understand that she had now issued an application for permission to appeal on 13 July 2016. I have not seen the appeal, but I understand from other documents and what I have been told (e.g. the notice of application dated 15 August from the new solicitors) that that is effectively on a merits basis. She argues a number of points in the application. I understand that is what she will be submitting to the Court of Appeal. That is to say, that Baker J exercised his discretion wrongly.
16. The appeal has obviously not been determined and no stay has been sought. Therefore, as Mrs Kirk was expressly told on 20 June 2016 notwithstanding any application she may make to the Court of Appeal, unless the order was stayed pending determination – and it has not been – the order must be complied with.”
  1. It was common ground that Mrs Kirk had failed to comply with the order. Indeed, in the face of the court, she continued to refuse to sign the form of authority before Newton J on 18th August. He therefore had no option but to find contempt of court proved.
  2. The judge then turned to the issue of sentence as follows:
“22. I proceed separately to sentence. I have listened with care to the mitigation put forward by Mr Gifford Head. (Counsel for Mrs Kirk). Mrs Kirk is 71. She is of previous good character. She is a retired lady of limited means and her assets and savings have been depleted in the pursuit of protecting the interests of MM as she sees it and in this litigation. I acknowledge that she has deeply held, sincere beliefs as to the best interests of MM and is genuinely concerned about his welfare.
23. The problem, inevitably, is when a court is asked to make a decision, there will be two – sometimes more – solutions. Baker J has determined the issues, his determinations remain extant. Inevitably therefore it follows, as it will in almost every court hearing, that at least one person in court is going to disagree sometimes, fundamentally and strongly, with the decision of the court. That does not mean that they then can simply be permitted to proceed as though the order does not exist; it goes to the very root of our judicial system.
24. In this case, the court has made a decision based upon the evidence that decision stands until either affected by a proper re-determination, or by the Court of Appeal, neither of which has occurred.
25. I take very much into account that, albeit at the last moment, Mrs. Kirk admits the breach and, in so far as I can, I make full allowance for that. She is, it is said, entitled to some credit, some discount for accepting in the face of the court the breach – her position remains unaltered, and it might be therefore by some to be more akin to open defiance, she says she has no intention of signing it. If it is mitigation, I take it into account. [sic]
26. The short point is what I should do. There has been a long period when Mrs. Kirk has successfully frustrated, by one means or another, the orders of the court. I only take into account what has occurred in relation to the breach of this order and this provision of the order; nothing else.
27. The maximum sentence is one of two years’ imprisonment. The options are limited. Mrs Kirk has little income and no assets. I have reluctantly concluded that there now being no other way, it seems to me, of enforcing the court order; that I am left with no alternative but to pass a sentence of imprisonment, however much I have made it perfectly clear that I do not wish to do so.
28. Taking all those factors into account and having regard to the sentencing authorities, I shall pass a sentence of six months’ imprisonment. However, I shall suspend the warrant for a period of seven days only to give Mrs Kirk one last chance to comply; I urge her to do so. If she changes her mind and signs the authority within seven days, the warrant will not be executed and I shall suspend the sentence for a period of 12 months. If she does not she will go to prison. If Mrs Kirk subsequently complies with the order, the matter should be immediately restored on an application to purge her contempt. What happens next is in Mrs Kirk’s hands.”
  1. The order made by Newton J gave Mrs Kirk a further opportunity to avoid going to prison by signing the document of authority. The order expressly provided that it would be suspended for a period of seven days and that no arrest warrant would be issued before 25th August 2016. It further provided that, if the required authority document was delivered to Devon County Council and to the Court prior to that date, the arrest warrant would not be issued.
  2. In the event Mrs Kirk continued to decline to sign the document and the judge issued an arrest warrant, we were told, on 25th August 2016.
  3. Mrs Kirk was apparently arrested on 26th September and since that time has been held in prison pursuant to the judge’s order until her release on 8thNovember 2016 following the decision of this court to allow her appeal.
The progress of the appeal against committal
  1. Following Mrs Kirk’s incarceration on 26th September it is not apparent that she made any attempt to launch an appeal against the committal order herself. Before this court she was represented by Mr Colin Challenger, acting pro bono until 21st October 2016 when LSGA solicitors applied to come onto the record, who, following, as I understand it, intervention by Mrs Kirk’s daughter, became aware of Mrs Kirk’s circumstances on 14thOctober and who then indicated a willingness to act on her behalf. The Court of Appeal office were able to provide him with access to the papers in Mrs Kirk’s application for permission to appeal against the June order and Mr Challenger prepared a draft Notice of Appeal and Grounds of Appeal against the contempt order which he sent to HM Prison Bronzefield where Mrs Kirk was being held. Mr Challenger told this court that he received no response from that communication. He then tried to visit Mrs Kirk and presented himself at the prison on 25th October (pursuant to an email arrangement made with the prison) but, he told the court, he was refused access “because the officer in charge of legal visits was on leave that week”.
  2. Mr Challenger, whose normal area of practice is commercial and property law, was commendably persistent. On 26th Ocotber he appeared before the Queen’s Bench applications judge, Ouseley J, and explained the circumstances. Ouseley J prepared a letter for dispatch to the prison indicating that unless the staff at HMP Bronzefield co-operated in arranging a visit by Mr Challenger to Mrs Kirk as her legal adviser, Ouseley J would require the Governor of the prison to present themselves before him in court on 28th October. Mr Challenger told us that the response to Ouseley J’s letter, which was sent by fax to the prison, was immediate. The Notice of Appeal and Grounds were shown to Mrs Kirk (apparently for the first time), she signed them and, as I have indicated, the Notice of Appeal was issued on 27th October.
  3. Pausing there, whilst it is not for this court to engage in express criticism of HM Prison Service, not least because it has had no notice of this hearing and we have not received any submissions on its behalf, two points can fairly be made. Firstly, if (and I stress ‘if’) the account of events that we have been given is broadly correct, then it is a matter of great concern that the draft Notice of Appeal and other documents initially transmitted to the prison by Mr Challenger were not passed on to Mrs Kirk and, obviously, that he was refused admission to visit her. Secondly, the conduct of Mr Challenger is worthy of significant praise; one might reasonably question what the position would have been had he not taken up her case and stuck with it in the manner that I have described.
The appeal against committal
  1. The thirteen grounds of appeal put forward by Mr Challenger range widely across the merits of the case and include matters which are also relevant to the proposed appeal against the order made by Baker J. At the oral hearing of the committal appeal, we encouraged Mr Challenger to focus upon ground 12, which is in the following terms:
“The judge failed to take any or proper account of the fact that the intended appellant had as a litigant in person filed an appeal against the underlying order which was by 18th August 2016 (and remains) awaiting receipt of transcript before consideration by a judge. In particular he fell into error when ruling that he would ignore the outstanding appeal because the appellant in that matter had failed to ask for a stay pending appeal.”
  1. Responding to the appeal on ground 12 Miss Louise MacLynn, representing Devon County Council, relied, as the judge had done, on the fact that Mrs Kirk was legally represented before Newton J and her legal team apparently took no step to apply for the June order to be stayed pending determination of the application for permission to appeal.
  2. Miss Fenella Morris QC, acting on the instruction of the Official Solicitor, on behalf of MM, urged the court not to approach the appeal in a manner which might provide an obdurate respondent to COP proceedings with something of a “trump card” to the effect that continued refusal could never be met by the sanction of committal.
  3. Miss Morris also submitted that it was plain that both Baker J and Newton J had taken all of the relevant circumstances into account, the ultimate decision was a matter of judgment and the Court of Appeal should be slow to interfere in their determinations.
Contempt appeal: discussion
  1. I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it. That aspect of the case, however, is a matter which goes to Mrs Kirk’s application for permission to appeal the original order, to which I will turn in due course.
  2. Be that as it may, Mrs Kirk’s appeal against the committal order, in my view, must succeed on a different, more narrow, basis relating to the fact that she had a pending application for permission to appeal against the order of Baker J at the time that the COP proceeded with the committal proceedings. I am clear that the court was in error in proceeding with the application for committal without further clarification as to the proposed appeal. In cases such as this this court must be careful never to say “never”. There will undoubtedly be urgent and pressing cases where it is necessary to proceed with committal proceedings notwithstanding an extant application for permission to appeal against a previous substantive ruling. This, however, was not such a case.
  3. It can undoubtedly be said that Mrs Kirk, albeit as a litigant in person, had been advised to apply for a stay to the Court of Appeal and warned that if she did not do so any committal application would proceed; it is also right that no application for a stay was made on her behalf by the lawyers acting for her before Newton J. It must, however, be plain to any lawyer considering these circumstances that, if a stay had been applied for, it would almost certainly have been granted by the Court of Appeal, at least until a transcript of the judgment of Baker J had been obtained. If a stay had been in place, again, it is difficult to conceive that a committal application would have proceeded pending determination of the permission to appeal application.
  4. In the circumstances of the present case, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepts had genuine and sincere objections to the welfare determination that had been made, had issued an application for permission to appeal that welfare determination, it was simply premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of Baker J’s judgment, should not have been taken as justification for proceeding with the committal application.
  5. For that reason, I concluded that the appeal against the committal order must succeed with the result that that order was set aside at the conclusion of the oral hearing.
  1. I agree with my Lord’s judgment. I associate myself explicitly with my Lord’s praise for Mr Challenger, to whom we, like Mrs Kirk, are much indebted. And I share the concern which my Lord has articulated in paragraph 27 above.
  2. In the course of argument I expressed the view that Mrs Kirk had been failed by the system. That failure relates in particular to the period after Mr Justice Baker and Mr Justice Newton had made their orders.
  3. Mr Justice Baker gave judgment on 10th June 2016; it took the best part of five months for the transcript to be produced, very shortly before the matter came on before us. Difficulties and delays in obtaining transcripts of judgments under appeal seem to be endemic, notwithstanding judicial protests down the years. The delay in this particular case was, in my judgment, intolerable, bearing in mind that Mr Justice Baker’s judgment was the platform for Mrs Kirk’s subsequent committal.
  4. Of greatest concern, however, is the fact that, in circumstances where she should never have been committed at all, Mrs Kirk languished in prison for almost seven weeks before being released. And, as my Lord has pointedly observed, how much longer might she have remained there had Mr Challenger not intervened and been so tenacious in his pursuit of her release? A proper system should not permit this to happen. The fact that it did happen here suggests that the systems in place are not adequate.
  5. I referred in Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, paras 46-47, to the fact that the Official Solicitor no longer has any role to play in relation to committal orders which result from contempt of court. I cannot help wondering whether Mrs Kirk might have achieved an earlier release if the Official Solicitor was still involved in such cases and still had responsibilities in relation to contemnors.
  6. The problem of contemnors languishing in the Fleet prison, whether through poverty, ignorance, obstinacy, lack of resolve or choice[1] was addressed by Sir Edward Sugden, then Solicitor General, later, as Lord St Leonards, the Lord Chancellor, who took the initiative which led to the enactment of the Contempt of Court Act 1830. Section 2 required the Warden of the Fleet to make a report four times a year, on the 20th January, 20th April, 20th July and 20th October, to the Lord Chancellor of “the Names and Descriptions of [all Persons committed by the Courts of Equity for Contempts] in his Custody … with the Causes and Dates of their respective Commitments.” Section 15 contained, as Rule 7, the requirement:
“That on the [30th January, 30th April, 30th July and 30th October] in every Year, or if any of those Days happen on a Sunday, then on the following Day, One of the Masters of the Court of Chancery, to be named by the Court, shall visit the Fleet Prison, and examine the Prisoners confined there for Contempt, and shall report their Opinion on their respective Cases to the Court.”
  1. The arrangements in the 1830 Act seem to have broken down, and in any event could not survive the abolition of the Masters by the Court of Chancery Act 1852, and at some time in the 1840s were taken over by J J Johnson, who had been appointed the Solicitor to the Suitors Fund, the ancestor of the Official Solicitor, in 1842. Matters were put on a statutory basis by the Court of Chancery Act 1860, section 2 of which provided that:
“In the last Week in January, in the last Week in April, in the last Week in July and in the last Week in October in every Year, the present Solicitor to the Suitors Fund, or in case of his Illness or unavoidable Absence, some other Officer of the Court of Chancery to be appointed by the Lord Chancellor from Time to Time during such Illness or Absence, and after the Death or Retirement of the present Solicitor to the Suitors Fund, the Solicitor to the Suitors Fund for the Time being, or some other Officer of the Court of Chancery to be appointed by the Lord Chancellor from Time to Time, shall visit the Queen’s Prison, and examine the Prisoners confined there for Contempt, and shall report his Opinion on their respective Cases to the Lord Chancellor.”
Section 5 of the Act required the gaoler or keeper of every other prison to make a report to the Lord Chancellor, within 14 days after the committal of any Chancery prisoner, containing the name and description of the prisoner and “the cause and date of his commitment.”
  1. Following the eventual repeal of the 1860 Act, the matter was regulated by a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

“review all cases of persons committed to prisons for contempt of Court, … take such action as he may deem necessary thereon and … report thereon quarterly on the 31st day of January, the 30th day of April, the 31st day of July and the 31stday of October in every year.”

That Direction remained in force until revoked by Grayling LC on 1 November 2012.
  1. The modern practice, as I recall, and I was involved on the instructions of the Official Solicitor in many such cases in the 1980s and 1990s, was that the Official Solicitor was notified by prison governors, very shortly after the prisoner’s arrival, of the reception in prison of every contemnor – which meant that the Official Solicitor could intervene, where appropriate, very quickly.
  2. As can be seen, the process of quarterly review by an officer of the court, instituted in 1830, continued until 2012. It served contemnors, and more generally the system, well. Not the least of the merits of the involvement of the Official Solicitor was the fact that he was not dependent upon instructions from the contemnor and indeed could, and did, act even though the contemnor did not want him to. Thus the obdurate, those seeking martyrdom and, more generally, those who could not or would not act on their own behalf, could be freed at the earliest proper time: see, for example, Churchman v Joint Shop Stewards’ Committee [1972] 1 WLR 1094, In re Barrell Enterprises [1973] 1 WLR 19, and Enfield London Borough Council v Mahoney [1983] 1 WLR 749.
  3. My Lord has referred to the difficulties Mr Challenger seems to have had in gaining access to Mrs Kirk in prison. I share his great concern. I make no apologies for repeating here what I said in Chelmsford County Court v Ramet [2014] EWHC 56 (Fam, [2014] 2 FLR 1081, paras 34-35:
“35 … there were difficulties in serving Mr Ramet because he was in prison. Service was eventually effected by the expedient of having him brought to the Royal Courts of Justice on 7 November 2013 pursuant to a production order and served by the Tipstaff. Mr Jerman tells me on instructions that the papers were removed from Mr Ramet on his return to prison and not returned to him until a day or two before the hearing on 28 November 2013. He also tells me that there were, despite what I had said in court on that occasion, difficulties in arranging access in prison to Mr Ramet by his legal team, with the consequence that proper instructions could not be taken until Mr Ramet’s arrival at court on 17 December 2013.
35 Recognising that I have not thought it appropriate to conduct any kind of investigation into these matters, and that I accordingly have only one side of the story, I must nonetheless record my concerns. Prisoners have a constitutional right of access to the court, the obstruction of which may be a contempt of court: Raymond v Honey [1983] 1 AC 1. Mr Ramet was facing penal proceedings before me: denial of access to the papers which the court itself, acting by the Tipstaff, had served on him and preventing adequate access to his lawyers, if indeed that is what happened, are very serious matters. I trust there will be no future occasion when I have to express such concerns.”
  1. Lest prison governors and their officers are under misapprehension as to the seriousness of this, I point out that in Raymond v Honey Lord Bridge of Harwich observed at p 15 that “No doubt the unjustified stopping of a communication between a prisoner and his solicitor is capable of amounting to a contempt of court.” So too, if there is unjustified obstruction of a legal visit to a prisoner by his lawyer.
  2. I end with a reminder to contemnors and their representatives of the availability of public funding. I repeat what I said in Ramet, paras 32-33:
“32 … Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:

“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –

(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”

The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.
33 Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB), [2014] 2 All ER 1095,[2] to which I would invite the attention of all family judges and practitioners.”
In the same way, criminal public funding is available in this court: see Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 and Morris v Morris[2016] EWCA Civ 812.
Note 1    An illuminating and in parts amusing account of the state of affairs in the Fleet immediately before the passing of the 1830 Act can be found in Jemmett ‘The Acts relating to the Administration of Law in Courts of Equity’, second edition 1836, pp 1-8.     [Back]
Note 2    Further analysis is to be found in Brown v London Borough of Haringey[2015] EWCA Civ 483, [2015] HLR 30, and Tiernan & Ors v National Farmers Union & Ors[2015] EWCA Civ 1419.    [Back]