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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 >> Clarke v Hurley [2001] EWCA Civ 200 (31 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/200.html Cite as: [2001] EWCA Civ 200

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(His Honour Judge Wroath)

		Royal Courts of Justice Strand London WC2 Wednesday, 31st January 2001

Wednesday, 31st January 2001

1. LORD JUSTICE THORPE: His Honour Judge Wroath, sitting in the Portsmouth County Court, considered an application brought by Miss Clarke for the committal of Mr Hurley to prison for breach of a previous order. As the judge recorded, the couple had married in 1996 and had two children aged, respectively, six and 18 months. There was an order, made on 16th October in the court by one of the District Judges, which included an injunction in a very standard form:

"The respondent is forbidden to intimidate, harass or pester the applicant and must not instruct, encourage or in any way suggest that any other person should so do."

2. The injunction was served on the respondent later that evening.
3. It seems that, towards the end of that very day, the respondent was arrested and held in custody by the police on some charge or matter that was quite unconnected with the domestic dispute. On the following morning, 17th October, the respondent asked the custody sergeant to get in touch with the applicant and ask if she would speak with him. She declined to do so. Later, the same officer telephoned her again and requested her to take the respondent's Filofax and cheque book to the police station, which she agreed to do. A third call was made, asking whether she would deliver his television set to the police station. But, by that stage, he was about to be moved and a fourth call was made by a different officer who made a similar request, but that the television set should be taken not to the police station but to the court, where he was no doubt being put before the Justices.
4. Somewhat surprisingly, this was the basis of the first complaint that the appellant put before Judge Wroath. He rejected it trenchantly. He said:

"... a proposition that a couple or three phone calls from a police officer could amount to harassment and a breach of the court order exposing somebody to a sentence of imprisonment would be quite wrong."

5. He went on to consider a separate complaint that the respondent had, in the following month of November, telephoned the applicant himself from Winchester jail. That the judge found to be a breach and, assessing it to be at the lower end of the scale, sentenced the respondent to a single day's imprisonment.
6. The appeal to this court is appeal as a matter of right since these are committal proceedings; but the appellant's advisors jeopardised that right by failing to file their notice of appeal within the due time. There is an affidavit from the appellant's solicitors explaining the delay and, were there anything at all in this appeal, I have no doubt that time would be extended. However, since it seems to me that the appeal is quite hopeless, unarguable in effect, I can see no sense in extending time to revive the appeal.
7. I think that Judge Wroath, retired former designated Judge of Portsmouth County Court, who has enormous experience of this sort of matrimonial bickering, was absolutely right to have reached the conclusion he did and for the very reasons that he gave. I would, for my part, refuse the application as such.
8. LORD JUSTICE BUXTON: I agree. It was said in the grounds for appeal that an issue arose in this case as to whether the judge had erred in considering that it was a relevant question whether the respondent intended or knew that the acts complained of amounted to harassment. For my part, I do not think that the judge approached the matter on that basis. I can quite see that in a case where something occurs that is undoubtedly an event of harassment, there might, on certain specific facts, be an issue as to whether the respondent was responsible for them if he himself had actually not performed those acts. But that is not this case. This is a case where, as my Lord has said, the judge found that nobody could possibly reasonably view what happened in this case as being harassment at all; and that is the basis upon which the judge decided the matter.
9. For my part, I fear I cannot see how these proceedings could properly have been started on the basis of the events that were complained of in the first part of the notice. That was also, I venture to think, the view of this very experienced judge.
10. The application was hopeless. The appeal is even more hopeless and, in my judgement, should never have been brought.
11. I entirely agree with everything that has fallen from my Lord, Thorpe LJ. I would not grant this application.
12. LORD JUSTICE LAWS: I agree with both judgments. I find it surprising that either the county court or this court should have been troubled with this wholly misconceived application.
Order: Application dismissed. Detailed assessment of the Applicant's costs. Copy of judgment to be sent to the relevant office of the authority. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)