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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kirk v Spratley [2001] EWCA Civ 876 (17 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/876.html Cite as: [2001] EWCA Civ 876

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE HULL QC
(Epsom County Court)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

1. LADY JUSTICE HALE: This is an appeal against a committal order made by His Honour Judge Hull in the Epsom County Court on 9th April 2001. In the action there were two defendants. The appellant's notice refers to that fact, but is only signed by one of the defendants. It is however clear that both defendants wish to appeal against the order and so we are treating it as an appeal by them both.
2. The defendants are mother and daughter. They live together at 61 Beresford Road, Dorking which is a former council house. There has been a long-running dispute with their next door neighbour principally over their keeping dogs. Eventually, the local authority brought proceedings for possession based upon nuisance or annoyance. There was a judgment of His Honour Judge Cook dated 10th June 1997 in which he said the following:

"I have not the slightest hesitation in finding that the number of dogs on the premises constituted and continues to constitute an annoyance and nuisance to the defendants' neighbours in the form of noise and smell."

3. On 25th July 1997 therefore he made an injunction requiring them to reduce the number of dogs to twelve by 1st January 1998 and to six by 1st July 1998. He adjourned the local authority's application to the first open date after 1st January 1998 to see whether they had done so.
4. However the matter was never brought back to court by the local authority. This may be because the defendants exercised the right to buy the house. The local authority would not therefore be in a position to restore the possession proceedings. The defendants later told the court that they had hoped to comply with the order by selling the property and moving away but that had not proved possible.
5. The claimant lives next door at number 60. She was so aggrieved by the defendants' failure to comply with the order that she sent threatening letters to them. This resulted in her arrest and she pleaded guilty to threatening behaviour. As I understand it, she was bound over to keep the peace as a result.
6. The claimant launched the present claim under the Protection from Harassment Act 1997 in June 1999. It came before His Honour Judge Morgan for trial on 27th January 2000. He heard oral evidence from the claimant, two neighbours and a police officer. He also heard oral evidence from the second defendant, the daughter, and he had a witness statement from the first defendant, the mother, who was not well enough to attend court. He made clear findings of fact upon that evidence. He preferred the evidence of the claimant and her witnesses. He made particular reference to the police officer's evidence and the contrast in behaviour of the claimant and the defendants when he visited their premises. He concluded:

"So I find as a fact that the defendants have on frequent occasions abused and threatened the claimant and her daughter and made loud noises by banging doors in the property and shouting and speaking very loudly outside the property in an offensive manner and such manner as to cause annoyance to the claimant.

It is common ground that the defendants have continued to keep dogs in excessive numbers beyond the level to which His Honour Judge Cook order them to be reduced. The second defendant has said that there are 18 dogs on the premises including five adult shepherd dogs, one poodle and the rest are adult dachshunds. All of these in a small property with a garden divided into a patio on which the dogs are allowed to defecate and urinate: and a grass area where she keeps her vehicle."

7. He continued that it was clear that the abuse and threats amounted to harassment within the meaning of the 1997 Act. He also concluded that keeping more than six dogs at the premises when it had been already found to be an annoyance to the neighbours was harassment within the meaning of the Act. He therefore made the following order forbidding the defendants -

"From pursuing any conduct which amounts to harassment of the claimant and her daughter ..... including molesting, pestering, annoying, assaulting or otherwise harassing the claimant or her said daughter or communicating with them other than through the claimant's solicitors or keeping or permitting to be kept at their premises 61 Beresford Road, Dorking, Surrey RH4 2QD on or after 27th July 2000 more than 6 dogs.

This order shall remain in force until 27th January 2001 at 4.00 pm unless before then it is revoked by further order of the court."

8. There was a penal notice attached to that order.
9. On 24th October 2000 the claimant made an application to commit the defendants for contempt of court. There were numerous incidents alleged but also a general allegation in paragraph 2.1:

"They have kept or permitted to be kept at their premises on or after 27th July 2000 a number of dogs in excess of six. This causes harassment and annoyance and an intolerable smell and noise."

10. There were various hearings and adjournments of that application. We were told by the defendants that at a hearing in November the judge pointed out to the claimant that the injunction was due to expire in January and if they wanted it extended they would have to move quickly in order to do that.
11. On 1st February 2001 His Honour Judge Hull made an order extending the order which had been made by His Honour Judge Morgan until 2nd August 2001. That order was of course made some days after the order of His Honour Judge Morgan had expired. Also on 1st February 2001 His Honour Judge Hull gave directions for hearing the committal application which he reserved to himself. The hearing took place on 9th April 2001. The defendants were represented by counsel at that hearing. It had been admitted in a witness statement dated 8th March 2001 that more than six dogs were being kept in the premises in breach of the order. Therefore His Honour Judge Hull found proved breaches of the order of 27th January 2000 stated to be "keeping or permitting to be kept at their premises at 61 Beresford Road, Dorking a number of dogs in excess of six".
12. In view of that finding there was thought to be no need to make findings on the other allegations. For the purposes of determining what to do about that finding it was not necessarily material that the order had expired on 27th January because it was clear that there had been breaches of the order while it was still in force.
13. The judge was of course entitled to impose a penalty with a view to securing compliance of the order and to mark the court's disapproval. He took the view that the defendants were determined to defy the court order and had backed up that determination with threats of suicide made to both doctors and the court. He therefore sentenced both defendants to two months' imprisonment but he was persuaded to suspend that sentence. The committal order states the suspension in these terms:

"The order is suspended until 10th May 2001 and will not be put into force if the contemnors comply with the following terms:

1) On or before 9th May 2001 they reduce the number of dogs kept at 61 Beresford Road Dorking Surrey to six or less and

2) Thereafter they do not permit the number of dogs so kept to exceed 6 at any time."

14. The first difficulty with this is that normally if a sentence is suspended a period should be set during which that sentence will remain hanging over the heads of the contemnors. It used to be thought that such a period had to be fixed and finite in the same way that sentences have to be suspended for a finite term in ordinary criminal cases. However in Griffin v Griffin [2000] 2 FLR 302, [2000] 2 FLR 44, this court held that it was possible to suspend a sentence imposed for contempt of court for a period which was defined by reference to the duration of the order to which it was linked, which could itself last indefinitely. Nevertheless it was preferable for the period of suspension to be defined.
15. The second problem with this order is that on the face of it it is suspended only until 10th May 2001. There is nothing in the order to suggest how long it was intended to continue after that time. Clearly, the imprisonment could be put into effect if the first condition of reducing the number of dogs to six or less on or before 9th May 2001 was not complied with. The defendants told us on the last occasion that it had been complied with and the claimant is not in a position to gainsay that. The second condition however presents the difficulty that it looks as though it continues indefinitely but it does not say so and it is in contradiction to the express term which suspends the order only until 10th May 2001.
16. Mr Wilcox, who appears for the claimant today, suggests that that defect could be cured by substituting 10th May 2002 for 10th May 2001. There are several difficulties with that, the first of which is it is clear from the note of judgment of Judge Hull that he did not have that particular date in his mind when he made the order. The second is that it is normal in these cases for the conditions to be linked to compliance with the order which has been breached and the continued compliance with a continuing order still in force. The difficulty in this case is that although there was an order made on 1st February extending the order of His Honour Judge Morgan until August, Mr Wilcox concedes that that order should not have been made. It should not have been made because it purported to extend an order with penal consequences after that order had lapsed. It would of course have been open to Judge Hull, had he the evidence to do so, to make a fresh order but he did not do that. He simply extended it. That is wrong in principle given that there is then an interval of time in which there existed no order and the defendants had no order addressed to them, and yet on the face of the second order they would have remained liable to penal sanctions for breach. That concession having been made, there is no continuing order to which the second condition could have been linked even if there was not the problem of the ambiguity of the period of suspension.
17. In my view therefore the committal order has come to an end. The period of suspension has expired. It is not alleged that the valid condition (number 1) has been broken so that is an end of the committal. The appeal will have to be allowed so as to delete the second condition imposed in the suspension for the reasons that I have given.
18. As a result of Mr Wilcox's concession as to the order of 1st February that means there is at present no order in place. However it will be open to the claimant immediately to make a fresh application under the 1997 Act. We cannot judge what the outcome of that application will be but it is by no means unlikely and may be highly probable that the outcome will be as it has been on previous occasions, that no more than six dogs could be kept at these premises. The courts that have previously considered this matter have heard the arguments. They know how important these animals are to the defendants. They know what the defendants say about the matter but they have nevertheless rejected their arguments.
19. The defendants should be under no illusions but that a fresh application could result in a very similar outcome. It is also li kely that a fresh application would, if an order were to be broken, result in serious consequences for them. It so happened that the claimant in this case proceeded by way of application to commit for contempt of court. The defendants are intelligent women and they can seek legal advice. They will discover that to break a civil order made under the Protection from Harassment Act 1997 is also a criminal offence; and so it is capable of being a police matter if an order made in civil proceedings is broken. I say that so they should be under no doubt as to the position. The second defendant has sensibly said that she should go and consult a solicitor and seek advice as to what would be the sensible way of approaching an application.
20. For those reasons I would allow the appeal and vary the order in the manner suggested.
21. LORD JUSTICE WALLER: I agree. (To the appellants) It would probably be useful to you to have a transcript of my Lady's judgment so you can take that to a solicitor to give advice. On this occasion we are prepared to direct you should have that transcript paid for out of public funds so you have a full note of what has been said.
22. MR WILCOX: Might that order be made so the respondent could have a copy too?
23. LORD JUSTICE WALLER: I think it should; fair is fair.
Order: Appeal allowed (Order does not form part of approved Judgment)