WHEN, AND WHETHER, PERMISSION TO APPEAL IS REQUIRED IN AN APPEAL AGAINST A DECISION TO COMMIT TO PRISON

October 4, 2022 · by · in Appeals, Committal proceedings

In Business Mortgage Finance 4 PLC & Ors v Hussain [2022] EWCA Civ 126 the Court of Appeal considered the scope of matters that fall within the rule that permission to appeal is not required in relation to committal hearings. It was held that permission to appeal was not required in relation to findings in relation to breach, even when there had been a later hearing in relation to sentence.

“By CPR r 52.3(1)(a)(i) a person committed to prison can appeal the committal order without permission and where, as must happen in a large number of cases, a judge makes findings of contempt and proceeds to commit the contemnor to prison on the same occasion, I consider that that entitles the contemnor to appeal, without needing permission, either the findings of contempt or the sentence or both. If that is right, it cannot make any difference that in a complex case like the present the findings of contempt are made first, and the sentencing is dealt with in a separate and subsequent hearing.”

THE CASE

The appellant had been found in contempt of court and sentenced to 24 months imprisonment.  He appealed three orders made by the court below: (i) an interlocutory order; (ii) the findings of contempt; (iii) the sentence.  The Court of Appeal considered whether permission was required to appeal from the findings of contempt.  It was held that permission was not required.

THE JUDGMENT ON THIS ISSUE

    1. The matters before the Court can be summarised as follows:
(1) In appeal CA-2022-000281 Mr Hussain sought to appeal a number of ancillary rulings made by Miles J (“the Interlocutory Appeal”).
(2) In appeal CA-2022-000537 Mr Hussain appealed the findings of contempt in the Liability Judgment (“the Liability Appeal”).
(3) In appeal CA-2022-000454 Mr Hussain appealed the sentence imposed in the Sentencing Judgment (“the Sentencing Appeal”).
    1. It was accepted that Mr Hussain needed permission to pursue the Interlocutory Appeal. Having considered the written submissions of Mr Hussain on one aspect of the proposed appeal, and heard from Mr James Counsell QC (as he then was), who appeared together with Mr Alex Haines for Mr Hussain, on the remaining aspects, we dismissed the application for permission to appeal for reasons to be given later.
    1. It was not suggested that Mr Hussain needed permission for the Sentencing Appeal. Although the parties seem to have assumed that Mr Hussain did need permission for the Liability Appeal, we expressed the view at the outset of the hearing that he did not need permission for that either. That was undoubtedly the view taken by Miles J who at the end of the Liability Judgment said that Mr Hussain had the right to appeal without permission (at [397]), and who made an Order dated 2 March 2022 on the handing down of that judgment which extended time for Mr Hussain “to appeal against the finding of contempt … and any sanction” and (by way of contrast) for him “to seek permission to appeal any other part of this order”. He repeated this view at the end of the Sentencing Judgment (at [74]) where he said that Mr Hussain was entitled to appeal “the findings of contempt and the sentence” without permission.
    1. We did not hear any argument on the point but that seems to me to be right. By CPR r 52.3(1)(a)(i) a person committed to prison can appeal the committal order without permission and where, as must happen in a large number of cases, a judge makes findings of contempt and proceeds to commit the contemnor to prison on the same occasion, I consider that that entitles the contemnor to appeal, without needing permission, either the findings of contempt or the sentence or both. If that is right, it cannot make any difference that in a complex case like the present the findings of contempt are made first, and the sentencing is dealt with in a separate and subsequent hearing.
  1. We therefore proceeded to hear the Liability and Sentencing Appeals. At the conclusion of the hearing we announced our decision that both would be dismissed, again for reasons to be given later.