About this case:

• Citation:
  [2023] NICh 2
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Gerald Simpson

This case involved two applications by the plaintiff to commit the first defendant for contempt of court due to his failure to abide by undertakings given in 2017. The applications asked that he be “committed to prison and/or fined” for these breaches.

Background

The first of two defendants in the case was a 79-year-old farmer who was formerly an electrical contractor.

The plaintiff was a company involved in the production and sale of electricity. In 2014, it leased lands from the first defendant in County Tyrone for a period of 21 years. However, disagreements arose between the parties, particularly about access to certain lands, leading to litigation.

In 2017, the plaintiff commenced an action seeking damages for trespass, breach of covenant and unlawful interference with the plaintiff’s property. It also sought an undertaking restraining the first defendant from trespassing onto the land.

In response, the first defendant provided two undertakings to the court, agreeing not to assault or harass the plaintiff’s employees and agreeing to not enter onto the plaintiff’s premises.

However, in November 2019 the plaintiff sought an order of committal for contempt due to the first defendant’s failure to honour these undertakings. The plaintiff claimed that there were three breaches in 2018 and a further five breaches in 2020–21.

These breaches included entering onto the land, obstructing employees and depositing farm equipment into the area he specifically undertook not to enter. Evidence highlighted that the first defendant filmed employees, appeared to interfere with a pipe “presumably with the intention of causing a pollution incident”, and on one occasion became verbally aggressive over a dispute regarding fertiliser.

When the matter first came before the court in 2020, it was adjourned several times to allow for the first defendant to reconsider representing himself, and instead obtain legal representation.

The first defendant’s actions

The court was informed that the first defendant was prepared to admit to the eight charges of contempt. The court also noted that although these were clear breaches, some amounted to non-violent “low level harassment and nuisance”.

Further, there was no suggestion that the plaintiff’s business was adversely affected by the breaches.

In mitigation, the first defendant’s counsel offered his client’s humble apologies to the court for the breaches, claiming that he solemnly promised not to breach the undertakings in the future, and that he had “learned his lesson”.

Specifically, in relation to the verbal altercation with the plaintiff, he accepted that he was mistaken about the ownership of the fertiliser and apologised to the plaintiff for its removal.

Consideration

In assessing the breaches, the court accepted that there were serious issues between the parties and that some of these included the map layout of the property. The breaches of the undertakings all had a connection with the first defendant’s presence in an area where there was a substantial dispute.

The court found there was at least an element of confusion on the part of the first defendant, who believed he was entitled to be on the land. While this did not excuse the breaches, it placed them in context.

The court also noted that the first defendant had never previously been involved in any litigation, and took into account that the lease appeared to proceed without issue between 2014 until 2017.

Further, the first application for committal due to contempt was not brought until November 2019. As such, for a variety of reasons, by no means all the first defendant’s fault, that application had been hanging over his head for over three years.

In mitigation, the first defendant relied on character testimonials, from the then Mayor of Derry City; a Member of the Northern Ireland Legislative Assembly; an Alderman; and a businessman. These spoke of his respect in the local community, and his positive work ethic; his integrity, honesty, commitment and dedication; and his trustworthiness and professionalism.

The court also considered the fact that the first defendant had agreed to pay the costs incurred by the plaintiff, which the court accepted would be a significant financial penalty.

Contempt of court

Order 52 of the Rules of the Court of Judicature of Northern Ireland provides the High Court with the power to punish for contempt of court by making an order of committal. Arlidge Eady & Smith on Contempt states that committal is the “court’s ultimate weapon in securing compliance with its orders”.

The limited range of options in an application to commit for contempt of court was identified in Hale v Tanner [2000] 1 WLR 2377, 2380H-2381G. This includes committal to prison, or the court “may do nothing, make no order. There is a power to fine. There is a power of sequestration of assets and there are mental health orders.”

In Danchevsky v Danchevsky [1974] 3 WLR 709, Lord Denning MR also highlighted: “Whenever there is a reasonable alternative available instead of committal to prison, that alternative must be taken.”

In this case, the court found that a sentence of imprisonment was not appropriate. Equally, however, it was not appropriate to simply make no order. The court determined that it was necessary to impose a monetary penalty on the first defendant in order to mark the seriousness of the breaches of undertaking.

Conclusion

In relation to the first three breaches, the court imposed a fine of £500 each. The charge involving verbal aggression was fined an additional £250.

In relation to the five breaches in 2020–21, the court noted that these occurred after the first application for committal for contempt. As such, the seriousness of the breaches had, or should have, become clear to the first defendant. For this reason, each of those breaches were fined £750.

The court therefore imposed a total of £5,500 in fines, allowing 20 weeks for payment. The order also recorded that the first defendant must pay the plaintiff’s costs for the applications, such costs to be taxed in default of agreement.