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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wright v Rogers [2022] EWCA Civ 1658 (16 December 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1658.html Cite as: [2022] EWCA Civ 1658, [2022] WLR(D) 515, [2023] 4 WLR 9 |
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ON APPEAL FROM THE WINCHESTER COUNTY COURT
HHJ BERKLEY
G00PO754
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BIRSS
and
LORD JUSTICE EDIS
____________________
JANICE WRIGHT |
Claimant/Respondent |
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- and - |
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YVONNE ROGERS |
Defendant/Appellant |
____________________
Luke Trim (instructed by Setfords) for the Respondent
Hearing dates : 8 November 2022
____________________
Crown Copyright ©
Lord Justice Edis :
i) By 30 September 2021 the defendant must remove the obstructing plants, wheelie bins, rubbish and foliage obstructing the claimant's right of way over the joint drive between 19 and 21 Allenby Grove, Fareham, Hampshire PO16 9RP.
ii) By 30 September 2021 the defendant must remove those parts of the overhanging trees that trespass on the claimant's property. The defendant must also ensure that the said trees are maintained so as to avoid further trespass on to the claimant's property.
iii) The defendant must not by herself or by her servants or agents or howsoever otherwise place plants, foliage of wheelie bins or conduct similar acts so as to obstruct the claimant's right of way.
iv) The defendant shall pay the claimant's costs summarily assessed in the sum of £5,713.20 to be paid within 14 days of service of the order.
5. In breach of section 1 of the court order referred to above, the defendant has failed to remove the obstructing plants, wheelie bins, rubbish and foliage which obstructs the claimant's right of way over the joint drive between 19 and 21 Allenby Grove, Fareham, Hampshire PO16 9RP. No effort has been made to move any of the obstructions and thus the defendant has been in breach of the order since 1 October 2021 and continues to be in breach at the writing of this application.
6. In breach of section2 of the court order referred to above, the defendant has failed to remove those parts of the overhanging trees that trespass on the claimant's property. No effort has been made to remove or pair back [sic] the tree and thus the defendant has been in breach of the order since 1 October 2021 and continues to be in breach at the writing of this application.
7. In breach of section 4 of the court order referred to above, the defendant has failed to pay the claimant's costs of £5,713.20 within 14 days of service of the order. This sum remains unpaid as at the writing of this application. As the order was served on 13 September 2021 this breach began on 28 September 2021 and is ongoing.
"The defendant's conduct has been disgraceful and shows a clear contempt of court."
"5. In her correspondence, the defendant has denied the jurisdiction of this court which she refers to as a "private corporate enterprise"…..that has been "conspiring with the claimant" …and rather than comply with the Order and clear the driveway she has instead at various times sought to rely on Magna Carta, the Committee of the Barons, Islamic Law, the jurisdiction of the United States and the Court of International law.
"6. During her various tirades she has accused myself and the claimant of:-
Abetting treason;
Sedition;
Harassment;
Discrimination;
Abuse;
Intimidation;
Loss of joy and pleasure;
Trespass;
Land encroachment;
Undignified and hostile treatment;
Terrorism;
Hate crimes;
Religious prejudice;
Property crime;
Human Rights violations;
Tampering with mail;
Property damage;
Contempt of court."
"Now you swell up like road kill on the side of the road. Get mad. I don't give a FLYING G@$$. My sole and complete focus is to EXPOSE YOU and YOUR BUSINESS ASSOCIATES for the VERMIN YOU ARE."
"Dear Ms. Rogers
Thank you for this. I will include it in the addendum bundle.
I look forward to seeing you on Thursday."
"[The appellant] shall, by 4pm on 27 July 2022, provide the court and the claimant's solicitors with up to date medical evidence supporting her contention that she is unable to attend a hearing, either in person or a remotely held hearing (ie by telephone or video link) and/or that she lacks capacity to litigate."
"21. I therefore proceed with sentencing. Mr. Trim has helpfully identified the authority of Simon Oliver v. Javid Shaikh [2020] EWHC 2658, a decision of Nicklin J. It is an admirably, if I may say so, concise and helpful template for dealing with matters of contempt of this nature."
"In terms of the degree of culpability of the contemnor there is little that needs to be said than simply to review the emails she has written and posts that she has made."
"71. This is considerable culpability and harm, and there is nothing to speak of in mitigation. As per paragraph 40 of The Financial Conduct Authority v McKendrick case, do I consider that this case has reached the custody threshold? I conclude that it has.
72. I gave myself pause for thought to consider this point carefully. But on reflection and looking at the authorities and looking at the extremely serious nature of how the Defendant and Mr Sollars have conducted themselves in resisting this order and compliance with it brings that conduct into sharp focus, and then I have to consider the harm that has been caused, which I have already covered.
73. For those reasons, I consider that a period of imprisonment is appropriate. I go on to consider whether that period should be suspended. Given the seriousness of the railing against the court order and everything and everyone connected to it, I am afraid I do not consider that a period of suspension is appropriate. This is a flagrant, persistent and serious ignoring of the court order and very bad treatment of someone who is entitled to rely on it.
74. The allegations are horrible and they must have caused Mrs Wright an extreme amount of distress. I reiterate, it is not about what the seriousness of what Miss Rogers was being asked to do, it is the seriousness with which she took the court order and the fact that she still has not complied with it. I am going to order an immediate custodial sentence.
75. Taking all those matters into account, I take into account, however, that Miss Rogers is 72 years old, she clearly is somewhat obsessed with the Magna Carta and other matters that are going on in her life and this, of course, is her first, so far as I am aware, finding of contempt against her, so taking all those factors into account I am going to commit Miss Rogers to a period of imprisonment for 6 months.
76. There will be a power of arrest attached to this order and a warrant for her arrest will be issued."
The Grounds of Appeal
8. The appellant contends that having regard to the fact that:-
9. Her liberty was at stake (as a possible outcome) and not disregarding the fact that she might not have produced medical letter/certificate that says that she was unfit to attend and participate, the learned Judge, fell into error by failing to accede to her request to have the matter start later on the same time.
10. In advancing this ground of appeal the Appellant submits that the learned Judge had the discretionary power at CPR 3.1 to put the case back in his list without causing any prejudice to the Respondent having regard to the overriding objective. The Appellant had sent several emails informing the court of the predicament that she had found herself in on account of the deception of Firman. Therefore, it is submitted that as this was a genuine reason, it was unreasonable, having regard to the fact that her liberty was to be determined, that the Court did not exercise its discretion in her favour.
11. Secondly, the appellant contends that in refusing her request to put the matter back to enable her to have Counsel at court, the learned Judge's decision was insufficiently reasoned and fails to demonstrate a clear engagement with the obligation pursuant to section 6 of theHuman Rights Act that it was ceased of the fact that the Appellant's right to liberty was engaged. Such a failure the Appellant contends vitiates the decision.
"Letter from Dr A. Hadi dated 3 August 2018 attesting to the appellant's diagnosis of "anxiety, stress and paranoia".
In the same letter, Dr Hadi specifically comments that the appellant "also has a history of traumatic life events which left her, in a way, a damaged person. Apart from her anxiety and stress, her mental health issues have significantly impacted on her ability to function on a daily basis. She has been displaying symptoms of agoraphobia and she finds it difficult to leave her house due to her anxiety and stress"
Letter from Dr A. Hadi dated 11 October 2018 contains the following: "[the appellant] continues to have her paranoid ideas about the neighbours and the authorities. She continues to believe that the neighbours next door are colluding with the police and the Council in order to cause problems for her because they do not want a Muslim woman living in this area. She also continues to believe that the Cannabis from her next door neighbour is seeping through the walls and chimney and this makes her have sinusitis. She has contacted the police but believes that the police also wants her out. She recently has been seeking legal help and she would not accept that her ideas could not be true."
Letter from Community Mental Health Nurse R. Dalgetty dated 4 August 2022 contains the following assessment: "You were able to complete the 'Hospital Anxiety and Depression Score' and when compared against the previous you completed, you continue to score for depression and anxiety, in the areas that we call 'abnormal' and we subsequently recommended to you that psychological input would be beneficial and with your agreement we will make a referral."
Letter from Community Mental Health Nurse R. Dalgetty dated 15 September 2021 says this: "Yvonne discussed recent events including the Police arresting her earlier this year and the trauma that she experienced as a result of this which is evident. Yvonne discussed the situation and in doing so, it was noted that she is evidently anxious. She also described herself as feeling "jumpy" and in terms of sleep, that she wakes frequently, feels that she is on edge, "startled easily" and can be "terrified". She provided an example that given recent events that if she sees a white car park outside this creates a trauma inside of her."
Letter from Dr Vera-Cruz, who is a consultant in old age psychiatry, dated 12 November 2021 says this: "Ideally she would benefit from an antipsychotic….When I mentioned my concerns that she was delusional today, Mrs Rogers was upset and felt that I was somehow in cahoots with her neighbours."
Discussion and Decision
The proper approach to determining the sanction
i) The maximum penalty available to the court in a contempt case is 2 years' imprisonment. In, for example, offences for breaching an anti-social behaviour injunction or a criminal behaviour order the maximum term is 5 years. The relevant guideline gives an offence range of a fine to 4 years, which cannot therefore be a reliable guide to sentence levels in civil contempt.
ii) Equally, the same guideline prescribes community orders for some levels of offence of this kind. The civil court cannot impose such orders. There is a power to impose requirements under section 3 of the Anti-Social Behaviour and Policing Act 2014, but for reasons explained by Birss LJ in Lovett, Smith and Hopkins [2022] EWCA Civ 1631 at paragraph [22] these are rarely used.
i) The order of DDJ Dack is complied with by the removal of all obstructions from the driveway by 20 January 2023.
ii) The order of DDJ Dack is thereafter complied with in every respect during the term of the suspended order.
iii) In the event of non-compliance with either (i) or (ii) above the committal order will take effect, and a warrant shall issue for the arrest of the appellant and imprisonment.
Birss LJ
Stuart-Smith LJ