Case No: CCRTF/99/0768/0813/A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAINES COUNTY COURT
His Honour Judge Hull Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 21 January 2000
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE JUDGE
and 
MR.  JUSTICE FERRIS

	CHRISTOPHER MORTON JOLLY		Appellant	
	- and -		
	(1) THE CIRCUIT JUDGE OF STAINES COUNTY COURT 
(2) THE DISTRICT JUDGE & BAILIFF OF STAINES COUNTY COURT
(3) THE CHIEF CLERK STAINES COUNTY COURT (COURT MANAGER)
(4) THE CHIEF CLERK OF GUILDFORD COUNTY COURT (COURT MANAGER)	Respondents	
	&
CHRISTOPHER MORTON JOLLY	
Appellant
	
	and
PENELOPE KIRSTEEN JOLLY	
Respondent	

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
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Mr. Jolly appeared In Person
 Mr. Angus McCullough (instructed by  The Treasury Solicitor for the Respondents to the first appeal)
The Respondent to the second appeal did not appear and was not represented

Judgment
As Approved by the Court
Crown Copyright ©

Friday, 21 January 2000

JUDGMENT

Lord Justice Judge:	
Two appeals by Christopher Jolly are before the court.  The first is his appeal from the decision of His Honour Judge Rich QC sitting as a High Court Judge, dated 19th March 1999, dismissing his appeal from the decision of Deputy Master Weir striking out his action for damages against the Circuit Judge, District Judge, Bailiff and Court Manager at Staines County Court and the Court Manager at Guildford County Court.  The second is an appeal from the decision of His Honour Judge Hull QC, in the Staines County Court sitting at Guildford, dated 17th November 1993, committing Mr Jolly to prison for fourteen days.  The first appeal proceeds with permission of this court on three grounds, the second, notwithstanding the lapse of time, with permission of His Honour Judge Sleeman.

The origins of this lengthy litigation can be traced back to the marriage in 1973 of Christopher and Penny Jolly who will throughout this judgment be referred to as husband and wife.  In 1982 they made their matrimonial home at Inglewood, Gorse Hill Road, Virginia Water, Surrey.  They separated in 1991, the wife alleging that her husband had behaved unreasonably.  She bought a property in Ascot.  They are now divorced.

On 14th August 1992 in the Staines County Court by an originating application the wife began proceedings in equity under s30 of the Law of Property Act 1925 relating to Inglewood, the value of which was in excess of £30,000.  After the usual interlocutory proceedings - orders for discovery and the like - on 21st June 1993 Judge Hull sitting at Staines County Court ordered that the husband and wife were beneficially entitled in equal shares to the former matrimonial home at Inglewood, subject to three mortgages, and that Inglewood should be sold “forthwith”.  The time for appealing against this order expired in mid July 1993.  An application for an extension of time for appealing was made in June 1994, and dismissed in the Court of Appeal on 6th September.

On 26th August 1993 His Honour Judge Ryland made a lengthy series of orders which included an order that the husband allow access to Inglewood, and a further order forbidding him from changing the locks at the house, or frustrating access.  Liberty to apply on 48 hours notice in relation to the implementation of this order, or the earlier order dated 21st June, was given to both parties.  Attention was drawn to the “penal notice attached”.  The language was unequivocal.  
"You must obey the directions contained in this order.  If you do not, you will be guilty of contempt of court, and you may be sent to prison."

The order was drawn up on 1st September.  The husband sought a suspension but his application was dismissed with costs on 21st September.  On 12th October, by notice to the husband, to show “good reason why an order for your committal to prison should not be made”, the wife applied for his committal to prison for disobedience to earlier court orders, and in particular, for his refusal to deliver or hand over a set of keys to the property to duly appointed estate agents, or allow access to Inglewood on 16th and 23rd September.  The husband was informed that he “must attend court.... to show good reason why (he) should not be sent to prison” and warned that if satisfied that any of the allegations were true the court might order his imprisonment for contempt.  Attention was drawn to “important instructions ..... overleaf”.  These notes described the court’s power to send the husband to prison if the allegations were true, told him that he “must” attend court in his own interest, and explained the court should be told if there were good reasons why a prison order should not be made.  

On 28th October at Staines County Court Judge Hull ordered the husband, who attended in person, to give up possession of the property at Inglewood “within seven days of today” and adjourned “this matter”, that is the committal application, to be heard at Guildford County on 1st December 1993 to enable him to be legally represented.  No objection was voiced by the husband.  The order was drawn up on 29th October.  No penal notice was included.

The husband failed to comply with the order made on 28th October by failing to give up possession of Inglewood within the prescribed time.  On 11th November the wife applied for his committal.  The application was returnable at Guildford County Court on 17th November 1993.  Again the application pointed out to the husband that he should “show good reason why (he) should not be sent to prison”, adding
"If the court is satisfied that any of the allegations are true, it may order that you be imprisoned for your contempt of this court."

The text drew attention to “important instructions ..... set out overleaf”,  which recorded the court’s power to order imprisonment and repeated the same important information as that given by notice on 12th October.  

This notice was received by the husband on 11th November.

On 17th November Judge Hull was physically sitting in the County Court at Guildford.  According to the terms of the order subsequently drawn up, “In the Staines County Court sitting in Guildford County Court”, and in the absence of the husband, the judge made an order committing him to prison for contempt for fourteen days.  The order included notice that he could apply “to the judge to purge his contempt and ask for his release, on notice to the applicant”.  

In the morning of 19th November the husband was arrested at Inglewood when he was getting ready to leave home.  He had an appointment at 10. 00 am for a hearing before a Lands Tribunal.  The precise details are unimportant but it is fair to the husband to record that this application arose in connection with a dispute about planning permission granted to the husband by Runnymede Borough Council in May 1988, substantially to extend Inglewood.  An objection to the construction of the extensions and notice of intention to take enforcement proceedings by the Wentworth Estate Roads Committee led the husband to begin these proceedings.  According to the husband the County Court at Staines, and in particular Judge Hull, was aware of the dispute, and the application to the Lands Tribunal.

The arrest was effected by the County Court bailiff and the husband was taken first to a police station, and subsequently to HMP Wandsworth, where he served his sentence.

Since then the husband has taken a variety of proceedings, including the present action which now stands dismissed.  Four readily identifiable issues require consideration, three arising from permission granted to the husband by this court to appeal against Judge Rich’s order on 19th March 1999 dismissing his appeal against a decision to strike out his statement of claim against judges and staff of Staines County Court and Guildford County Court as vexatious and an abuse of process.  In essence these issues arise from the husband’s contention that orders were made and implemented at these courts in excess of or without jurisdiction. 

In summary Mr Jolly argued that the County Court lacked jurisdiction in equity proceedings to consider an application under s30 of the 1925 Act where the value of the land in question exceeded £30,000.  He further submitted that the committal was unlawful for three reasons, first, because the jurisdiction of the Staines County Court could not lawfully be exercised at Guildford County Court, which was outside the district of Staines County Court, second, because the necessary penal notice was omitted from the order dated 28th October, and third, because he was immune from service of the order for committal by the court bailiff when he was on his way to participate in proceedings in the Lands Tribunal. 

The application under s30 of the Law of Property Act 1925 
The property at Inglewood was valued in excess of £30,000.  Mr Jolly relied on the County Court Jurisdiction Order 1981 to argue that the County Court at Staines had no jurisdiction to deal with the application.  Such reliance is misconceived.  Under the High Court and County Courts Jurisdiction Order 1991, which came into force on 1st July 1991, and remained in force throughout 1993, the County Court jurisdiction under s30 of the Law of Property Act 1925 extended to proceedings,
"Whatever the amount involved ...... and whatever the value of any fund or asset......"

The Order made at Guildford County Court 
Judge Hull QC was appointed a Circuit Judge on 4th November 1991, and assigned generally by the Lord Chancellor to sit in the Crown and County Courts on the South Eastern Circuit, and in particular to the Kingston Group of Courts.  These include both Staines and Guildford County Courts which however are in different districts for the purposes of s1(1) of the County Courts Act 1984.  

The entire County Court system is a creature of statute, originally established by the County Courts Act 1846, and at the time with which this action is concerned, governed by the County Courts Act 1984.

S1(1) provides:
"For the purposes of this Act, England and Wales shall be divided into districts, and a court shall be held under this Act for each district at one or more places in it; and throughout the whole of each district the court so held for the district shall have such jurisdiction and powers as are conferred by this Act and any other enactments for the time being in force."

S5(1) provides:
"Every Circuit judge shall by virtue of his office, be capable of sitting as a judge for any county court district in England and Wales, and the Lord Chancellor shall assign one or more Circuit judge to each district and may from time to time vary the assignment of Circuit judges among the districts."

The rule making power in force during 1993 was originally found in the County Courts Act 1959, but as a result of s17(2)(b) of the Interpretation Act 1978, the County Court Rules 1981 took effect as if they had been made under s75 of the 1984 Act.  The rule making power provides both for the transfer of proceedings from one court to another (Ord16) and enables directions to be given for proceedings in one district to be heard in another (Ord13).  These powers are distinct, and much of Mr Jolly’s pleading in the current statement of claim arises from his, perhaps understandable, ignorance of the distinction.

In relation to directions for hearing at another County Court, Ord13 provided:
"(1) In any action or matter the court may at any time, on application or of its own motion, give such directions as it thinks proper with regard to any matter arising in the course of the proceedings......

(3) Where the same judge is the judge for two or more districts and proceedings which are to be heard and determined by him are pending in the court for one of those districts the judge or registrar may, in the exercise of the power conferred by paragraph (1), direct that the hearing in those proceedings shall take place in the court for another of those districts ......"

The practical value to litigants of this power is obvious.  Among other advantages it enables a case to be listed at the earliest or most convenient date before a judge of the same district in whichever of the courts within that district his itinerary happens to have taken him.  In the present case Judge Hull was assigned to sit both in Staines County Court and Guildford County Court.  His direction on 28th October complied with the requirements of Ord13 when “this matter” was adjourned for hearing at Guildford County Court.   There is therefore no doubt that, as a matter of jurisdiction, Judge Hull was entitled to make the order for committal whilst physically sitting in Guildford County Court on 17th November 1993.  

In any event however, the fact that he was physically sitting in Guildford, rather than Staines, was merely an “irregularity” for the purposes of Ord 37 r5 of the County Court Rules.  If so, provided an application was made within a reasonable time, the court would have been entitled to set “irregular” proceedings aside.  No application was ever made to set aside the committal order, and although the point first arose in the course of the present action for damages begun in late 1998, no formal appeal against the order was made until 1999.  At all material times the husband was fully informed of the place at which the judge would be sitting and where he would be considering the relevant application.  On 28th October he raised no objection to the matter being heard at Guildford County Court, and the notice to him directed his attendance there.  If there had been any irregularity (which there was not) and even in the context of a committal order, this is not a case in which the court’s power to set aside irregular proceedings should be exercised.	

The Omission of a Penal Notice 
When an individual refuses or neglects to comply with a court order its enforcement in the County Court by way of committal derives from the provisions of Ord29 of the County Court Rules.  

Ord 29 r1(3) provides that an order enforceable by committal should be endorsed with or incorporate a penal notice, that is a notice of the potential consequences of disobedience.   Ord29 r1(4) and (4A) provide, in effect, that any subsequent notice to commit for disobedience should specify the orders which have been disobeyed or broken and identify the breach or breaches alleged.  Under Ord29 r1(7) it was provided:
"..... The court may dispense with service of a copy of the judgment or order under paragraph (2) or a notice under paragraph (4), if the court thinks it just to do so."

This dispensing power did not expressly extend to the provision for a penal notice provided by Ord29 r1(3), but given the power to dispense with service of the judgment or order on which the penal notice was to be endorsed, it follows that as a matter of discretion the court was similarly empowered to dispense with the requirement of a penal notice, or, more precisely, to proceed to consider a proper notice of application to commit notwithstanding the absence of a penal notice on the judgment itself.   This conclusion is consistent with the decision of this court in Davy International Limited v Tazzyman [1997] 1 WLR 1256.   Relating to the corresponding powers of the High Court.  In principle the jurisdiction should not be exercised too readily, lest what should be a dispensing power for use in exceptional cases may gradually undermine the express requirements of Ord 29 r1(3). 

With these considerations in mind the first obvious fact in the present case is 5½ years have elapsed since the committal.  As we have no note of the judgment we do not know what Judge Hull had in mind when he made the committal order notwithstanding the absence of a penal notice.  What however we certainly do know - and which despite Mr Jolly’s arguments, the judge almost certainly would have had well in mind - was that the husband was fully aware of the mandatory order made by the court not long before, and that this order was directly linked with the subject matter of the litigation - that is, the sale of Inglewood - which had already been subject to a penal notice, and about which the husband had already been served with a notice of application to commit, which had given unequivocal warnings of the risks of an order of imprisonment for disobedience to a court order.  By the date of the hearing on 17th November Mr Jolly had received yet another notice, explaining the consequences of disobedience.  He elected not to attend.  In my judgment the inference that Mr Jolly fully appreciated the potential consequences of disobedience of the order dated 28th October is unavoidable.  This is lent some support by his failure to make any application to purge his contempt, or to appeal the order at the time when it was made.  In my judgment neither the conclusion that the court was vested with jurisdiction to commit him to prison for contempt, nor the decision to exercise the power in the particular circumstances of the case are open to criticism.

Privilege from arrest 
For present purposes I shall assume first that the Lands Tribunal is a court to which the relevant principles relating to immunity apply (see Attorney General v BBC [1981] AC 303), and further, that although the husband was physically within his own house at the time when the order was served, the immunity would apply even though he was not physically on his way to the Lands Tribunal.  In another case these questions would require closer examination.  Mr Jolly argued that he was entitled to freedom from arrest, and that anyone who interfered with that freedom, even on the basis of the order of the Court, was himself in contempt, and acting unlawfully.  

The argument too is misconceived.  In some, but not all, forms of legal process, witnesses and parties attending and returning from court are privileged from arrest.  The foundation for this privilege is the public interest in the proper administration of justice, which at least in part depends on the ability of witnesses to make their way to and from court  to give evidence without hindrance.  Where the privilege exists it is open to the individual witness under arrest to claim it and apply for habeas corpus.  Nevertheless the privilege is not his to enforce and no action for
damages lies
"........... against a Sheriff or his officer for arresting a party attending under a Summons from a Court, though it be alleged that the party was there by privilege, and that the defendant knew the facts, and made the arrest maliciously."
	(Magnay v Burt [1843] 5 QB 380)
Although the court may order the release of the witness from custody, and his attendance, and proceed to treat the arrest itself as a contempt of court, the privilege attaches to the court.  (See Cameron v Lightfoot [1778] 2 Wm. Bl. 1190). In In Re Hunt [1959] 2 QB 69, Romer LJ summarised the principle:
"The privilege, if any, is not the privilege of the litigant, but the privilege of the court, and if it be the privilege of the court, nothing could be plainer than that it is open to the court itself to have a man arrested if it thinks proper to do so under a committal order ......."

Further elaboration of the point is unnecessary.   It is sufficient to notice that the privilege does not in any event extend to the witness (or party) who is arrested for contempt of court on the basis of wilful disobedience to an injunction. (See In Re Freston [1883] 11 QB 545 and In Re Hunt.)  That was precisely Mr Jolly’s position.  Even assuming that the privilege applied when he was physically in his own house, an individual in contempt of court by reason of disobedience to one of its orders is not entitled to rely on the privilege of the court as the basis for an action for damages for unlawful arrest while on his way to attend another court.

Conclusion 
Mr Jolly sought to advance a number of further arguments.  I could not detect any point meriting attention.  

In the result all the arguments deployed in the appeal against the decision of Judge Rich dismissing his appeal from the decision to strike out his action for damages against the Circuit Judge, District Judge, bailiff and court manager at Staines County Court and the court manager at Guildford County Court have failed. The committal order was properly made.  The appeals should be dismissed, the order striking out the claim for damages upheld, and the committal order confirmed.

LORD JUSTICE PETER GIBSON:
 I pay tribute to Mr. Jolly, appearing in person before this court, for his industry in preparing his two appeals.  He has supplied us with a substantial bundle for each appeal, including in each bundle copies of a large number of authorities which he wished to put before us.  He has also provided us with a lengthy skeleton argument and a written opening speech in each appeal as well as a written reply to the skeleton argument of the Respondents.  To all that he has added further oral submissions.

	But Mr. Jolly is not a lawyer and I am afraid that he has had difficulty in distinguishing the relevant from the irrelevant and the arguable from the unarguable.  To give one example, he started his oral argument to us on the appeal from the order dated 23 April 1999 of His Honour Judge Rich Q.C. by referring to the Sheriffs Act 1887.  Quite apart from the fact that he has not obtained leave to appeal on any such point and that it was not raised in his Notice of Appeal, not only did he have difficulty in showing that any provision of that Act was applicable but also, even if he had been able to show that, he was faced with the insuperable obstacle of a two-year limitation period under s. 29(7) which has long since expired.

	I am in entire agreement with the judgment of Judge L.J.  The only point raised by Mr. Jolly on which I would wish to add a few words relates to the omission of the penal notice required by O. 29 r. 1(3) of the County Court Rules to be indorsed on or incorporated in the order, disobedience of which led to his imprisonment.  In many if not most cases such an omission would amount to a fatal flaw.  But the court has power under O.29 r. 1(7) to dispense with personal service of an order, whether that order is in the form of a negative injunction (O. 29 r. 1(2)(a)) or in the form of a mandatory injunction (O. 29 r. 1(2)(b)), and it must follow that it has power to dispense with the penal notice on an order which is served personally.  While O. 29 r. 1(7) does not in terms provide that the power can be exercised retrospectively after the occurrence of the event said to constitute breach of the order, the corresponding power conferred on the court in High Court proceedings by O. 45 r. 7(7) of the Rules of the Supreme Court has been held by this court to permit retrospective exercise (Davy International Ltd. v Tazzyman [1997] 1 W.L.R. 1256).  Mr. Jolly submitted that because that was not a decision relating to O. 29 r. 1(7) it could be distinguished.  But the wording of the provisions of O. 29 r. 1 is very similar to that of the provisions of O. 45 r. 5 and r. 7 of the Rules of the Supreme Court and the reasoning which led this court to conclude that the power in O. 45 r. 7(7) was exercisable in respect of a mandatory order retrospectively (see in particular pp. 1261E - 1262B) seems to me to apply with similar force to O. 29 r. 1(7).

	There is nothing before us to indicate that His Honour Judge Hull Q.C. was aware of the absence of a penal notice from the order of 28 October 1993, nor that he was exercising the dispensing power, and if there was real doubt as to whether he would, if he had been so aware, have exercised the power, it would be right to allow the appeal.  But in my judgment there is no such doubt.  Mr. Jolly was in court on 28 October 1993 when the Judge made the order which Mr. Jolly disobeyed.  That itself was at the hearing of an application to commit Mr. Jolly for breach of an earlier order.  He had received a number of notices by which he had been fully warned of the consequences of disobeying a court order.  In particular the notice served on 11 November 1993 was clear as to the nature and consequences of the application.  To my mind it is significant that at the time Mr. Jolly did not challenge the order of committal; nor did he seek to avail himself of the express power inserted in the committal order to apply to purge his contempt.

	For these as well as the reasons given by Judge L.J. in his judgment, I too would dismiss Mr. Jolly’s appeals.

MR JUSTICE FERRIS:

 I agree with both judgments.

Order:  Appeal dismissed; costs on first matter, some special costs (i.e. for couriers).  No costs on second matter.