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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 >> De Montford v McKenzie [2004] EWCA Civ 1189 (17 August 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1189.html Cite as: [2004] EWCA Civ 1189

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE RHYL COUNTY COURT
(MR JUSTICE WILSON)

		Royal Courts of Justice Strand London, WC2
		17th August 2004

1. LORD JUSTICE WALL: This is an appeal by Mr Raymond McKenzie against suspended committal orders made on 10 February 2004 by Wilson J (sitting in Chester as an additional judge of the Rhyl County Court). The committal orders relate to breaches of undertakings which Mr McKenzie had given on 2 July 2003 in proceedings instituted by his former wife, Angela De Montford, under Part IV of the Family Proceedings Act 1996.
2. The undertakings which Mr McKenzie had given are recorded by the judge in his judgment as being the following:

"1. Not to intimidate, harass or pester the applicant and not to instruct, encourage or in any other way suggest that any other person should do so.

2. Not to write to or telephone the applicant.

3. Not to enter or attempt to enter the property Greenfield House, Greenfield, Holywell, Flintshire or to go within 400 yards of the property save for travelling in a vehicle along the highway fronting the property."

3. The judge records that Mrs De Montford also gave undertakings to the court on 2 July 2003, albeit (he says) to a lesser extent. She was not, however, alleged to be in breach of any undertakings which she had given.
4. In October 2003, Mrs De Montford issued committal proceedings alleging breaches of Mr McKenzie's undertakings given on 2 July. Those proceedings came before His Honour Judge Barnett, sitting in Rhyl. Both parties were acting in person. Mr McKenzie has obtained a transcript of the hearing before the judge. The judge was, quite properly, concerned that the allegations which Mrs De Montford was making against Mr McKenzie had not been properly particularised. At page 4 of the transcript (page 47 of our bundle), the judge says:

"The crucial point that concerns me is that the rules are clear beyond any doubt. The rules of court are very clear in dealing with applications such as this, where the liberty of the subject is in issue. Order 29 of the County Court Rules, which is the order that governs these sort of applications, provides that an application notice, namely, your notice to show cause, shall (a) identify the provisions of the injunction or undertaking which is alleged to have been disobeyed or broken; (b) list the ways in which it is alleged that the injunction has been disobeyed or the undertaking has been broken; and (c) be supported by an affidavit stating the grounds on which the application is made."

The judge made it clear that the notice to show cause before him did not obey these rules and that the evidence put forward by Mrs De Montford was incomplete and unfocused.

5. The upshot was that the judge adjourned the hearing. He gave Mrs De Montford permission to amend the notice to show cause so as to comply with the rules. He also gave directions as to service. He reserved costs.
6. We do not have the notice to show cause or the amended notice in our papers. However, the judge refers to such a document in paragraph 10 of his judgment and describes it as "a more satisfactory document but still not as focused as it might have been if the applicant had been legally represented in a formal way." The judge, accordingly, felt able -- in order, as he explains it, to "give as much assistance as possible to [Mr McKenzie], and indeed also to [Mrs De Montford]" -- to "refine" her allegations into six matters, all which were to be found in parts of the amended notice to show cause.
7. By these means, and after hearing oral evidence, the judge made five findings which were subsequently recorded as a schedule to the order headed "particulars of breach". They were as follows:

"1. On 20 August 2003, in breach of his third undertaking to the court dated 2 July 2003, the respondent parked his car within 400 yards of Greenfield House (Penalty: 28 days, suspended).

2. Later on 20 August 2003, in breach of his first undertaking aforesaid, the respondent intimidated and harassed the applicant in that, while she was travelling in a van westwards towards Colwyn Bay on the A55 road, he closely followed the van in his car, suddenly overtook it and then proceeded very slowly in front of it for at least 10 miles, all with a view to causing her fear and distress. (Penalty: 28 days concurrent, suspended).

3. On 3 September 2003, in breach of his second and third undertakings aforesaid, the respondent walked up to the gates of Greenfield House and deposited in the letterbox affixed thereto an ostensibly anonymous letter addressed to the applicant (Penalty: 28 days concurrent, suspended).

4. On about 8 November 2003, in breach of his second undertaking aforesaid, the respondent wrote (and sent by post) a letter to the applicant. (No penalty).

5. On 16 July 2003 and 20 July 1003, in breach of his first undertaking aforesaid, the respondent harassed the applicant by writing letters without just cause to the solicitor acting for the vendor of Plas Hall, Pont y Pant, Conwy, calculated to cause the vendor to take all steps open to him both to withdraw from his proposed sale of it to her and to evict her therefrom. (Penalty: 28 days concurrent, suspended)."

8. One further allegation, namely that on a number of occasions after 2 July (in other words not just on 20 August 2003 and usually on Wednesdays) Mr McKenzie had parked his car within 400 yards of Greenfield House was found by the judge not to be established beyond reasonable doubt.
9. A word or two of explanation is perhaps required to put these findings in context. Greenfield House was the former matrimonial home of the parties which had been transferred to Mrs De Montford in the context of divorce proceedings by virtue of a judgment given by Connell J. Mrs De Montford derived an income from the property by letting rooms to people who would otherwise be homeless. She also appears to have run some sort of business from the premises which, in particular, required her attendance on Wednesdays. One of her tenants was a young man called Emlyn Cartwright, who gave evidence to the judge, and on whose evidence the third of the breaches found by the judge was made.
10. The second point of explanation is that Mrs De Montford lives with a Mr Ross Jones, who at the time of the hearing before the judge was a solicitor suspended from practice. According to a newspaper report in our papers, he has since been struck off. Mr Ross Jones gave evidence before the judge, and it was on his evidence that, in particular, the second of the two breaches found by the judge was held to be established.
11. The third point of explanation is that Mrs De Montford and Mr Ross Jones appear to have contracted to purchase a hotel called Plas Hall near Betwys. The vendor appears to have allowed them into occupation prior to completion and there was apparently, at the time of the hearing before the judge, a grand opening night being advertised for 4 July 2004.
12. The final breach involved Mr McKenzie writing letters to the solicitor acting for the vendor of the hotel. The judge found that to be harassment. It was not disputed by Mr McKenzie that he had written the letters. The solicitor in question, Mr Hodd, was the subject of a witness summons issued by Mr McKenzie, and produced his correspondence, from which the judge quotes extensively and, as I say, which he found to constitute harassment of Mrs De Montford. It is also apparent, both from the documentation and the history which it contains, that, as the judge himself commented, there had been numerous court applications between the parties which were reflective of "a terrible history of antagonism between them". It is apparent to this court that that antagonism persists.
13. Finally, before going to the judgment and the grounds of appeal, I need to record two matters relating to Mrs De Montford. The first is that she is not here today. She initially sought an adjournment of the hearing, which I refused. She has sent a fax, addressed from Plas Hall, putting her side of the case. The second is that although she was the applicant before Wilson J, she did not herself give evidence, even though she had sworn I think three affidavits. The judge was surprised initially by this, but subsequently came to the conclusion, as the hearing progressed, that her decision was sensible. The judge explains that with both parties in person he "faced great difficulty at times in not allowing the proceedings to descend into anarchy". He also took the view that, had she given evidence, it was possible that he might not have found her evidence sufficiently reliable to be accepted by the court unless corroborated by the evidence of another.
14. Against this background, I find it somewhat curious that the grounds of appeal put forward by Mr McKenzie relate solely to what are alleged to have been the ongoing defects in the notice to show cause. I appreciate that Mr McKenzie is a litigant in person, but this court has to deal with this case in the normal way. Mr McKenzie says:

"(1) The trial judge should not have allowed the hearing to start, as the show cause notice did not comply with Order 29, Rule 4A of the County Court's own rules.

(2) The trial judge should have given the respondent the choice of (1) having the matter dismissed or (2) allowing the matter to be adjourned again, giving the applicant yet more time to get the show cause notice correct, in accordance with the court's own rules, Order 29 rule 4A.

(3) As was the case on 4th November 2003 before His Honour Judge Barnett (see order of 4th November)."

The brief arguments in support of the grounds, supplemented later by a fuller document, make the same point.

15. Order 29 of the County Court Rules requires that the notice to show cause should do a number of things. For the purposes of this appeal I need only read rule 4A, which states:

"The claim form or application notice (as the case may be) shall–

(a) identify the provisions of the injunction or undertaking which it is alleged have been disobeyed or broken;

(b) list the ways in which it is alleged that the injunction has been disobeyed or the undertaking has been broken;

(c) be supported by an affidavit stating the grounds on which the application is made ..."

16. In my judgment, Mr McKenzie's argument on this part of the case is quite unsustainable. The purpose of Rule 29(4A) is to ensure procedural fairness so that a respondent knows the case he has to meet, and is not taken by surprise by an allegation that has not been pleaded. I do not think Mr McKenzie is suggesting that he was taken by surprise, or disadvantaged in any way. Indeed, the judge went out of his way to ensure that this was not the case.
17. Although we do not have the document, the judge refers specifically to Mrs De Montford filing an amended notice. Secondly, as I have already indicated, he records in paragraph 13 of the judgment that he was able to refine the notice into six clear allegations, although he had difficulty in keeping both parties, and particularly the applicant, to the point. In my judgment, Mr McKenzie was fully able to argue his case.
18. The judge does not record being asked for a further adjournment, and Mr McKenzie frankly acknowledges that he did not ask the court to adjourn. In any event, had he sought an adjournment the judge would have been fully entitled to refuse it. In these circumstances I cannot see that any possible criticism can be made of Wilson J in proceeding with the hearing. The allegations were clear. Mr McKenzie knew what they were. He was in a position to meet them and was fully able to do so.
19. As to Wilson J's findings of fact, it is always difficult for an appellant to attack careful findings made by an experienced judge who has heard the witness and formed a view on the credibility of each witness. Mr McKenzie faces an additional difficulty in this case, in that two of the allegations depend critically not on oral evidence but on documents which in one case the judge found he wrote and in the second, the letters to Mr Hodd, which Mr McKenzie acknowledges writing. Mr McKenzie seeks to get round that difficulty in the instant case by relying on the fact that the judge had been involved in the case once before, and by arguing that on the previous occasion when Wilson J had dealt with the case he had made findings of fact which were inconsistent -- notably as to credibility -- with the findings he made on the instant application.
20. I have serious doubts about the propriety of this line of argument. But because Mr McKenzie is in person, we have allowed him to develop it. In the first place, we are being asked to look at material which was not before the judge. The judge had a copy of Connell J's judgment, but he did not have a copy of his own previous judgment. In the second place, the argument that Mr McKenzie advances is that the judge was at risk of making inconsistent findings does not itself appear to have been put to the judge himself. In paragraph 2 of his judgment, after the reference to the "truly terrible history of antagonism between [the two parties]", the judge states:

"Here in Chester in June 2001 I myself heard certain applications relating to them. I have little recollection of the applications. I believe that they arose out of an order for ancillary relief which had been made by Connell J. Apparently aspects of the conflict between the parties have spilt over into the criminal courts."

It does not seem to have been put to the judge, and Mr McKenzie did not argue today that it was, that Wilson J had made findings about particular individuals in the past. However, even if the matter had been put to the judge, it is by no means conclusive in Mr McKenzie's favour. As my Lord pointed out in the course of argument, a witness may not tell the truth on one occasion about one issue, but do so in relation to a different matter on a different occasion. Moreover, a judge must in my view approach every part of a case such as this with an open mind. Even if Wilson J had remembered the parties and their witnesses, I have some doubts about the propriety of a judge relying on previous findings as to credibility several years earlier in a different part of the case, albeit that the subject matter was similar. Had the judge, for example, (as I put to Mr McKenzie during the course of argument) formed an adverse view of him in 2001 and then carried that over into the instant proceedings, I imagine that Mr McKenzie would be the first to cry "foul" -- and in my judgment with some reason.

21. However, even though I have considerable doubts about the propriety of examining the judgments of Connell J given in July 2000 and Wilson J on 15th June 2001, I have decided that I should do so, partly because Mr McKenzie is in person, but mainly because these are committal proceedings. Although suspended orders only have been made, Mr McKenzie remains at risk of losing his liberty if he breaches any of the injunctions that Wilson J made to accompany the committal orders on 10 February. Mr McKenzie has advised us that there is already outstanding an application for his committal for breach of those orders which will fall to be heard in the normal way by a Circuit Judge.
22. I therefore look at the findings which Wilson J made on 10 February 2004 and the basis upon which he did so.
23. The first two allegations related to 20 August. The evidence in relation to them was given by Mrs De Montford's cohabitee, Mr Ross-Jones. As I have already stated Mr Ross-Jones is a former solicitor, now struck off. The allegation made by Mr Ross-Jones was not just related to the behaviour of Mr McKenzie in driving his car as found by the judge in the second of the breaches: it was also alleged that he had threatened Mr Ross-Jones by shouting at him, "You're off the booze now but it's not the booze that is going to kill you."
24. Mr McKenzie's defence to this part of the claim was that it was a fabrication by Mr Ross-Jones. The judge was thus faced with a straight choice as to credibility. He was, he says, in no doubt as to whom he believed. He applied properly the criminal burden of proof to the facts. He was sure. As Mr McKenzie accepted in argument this afternoon, Wilson J is a very experienced judge. In my view he was manifestly entitled to choose which of the versions he believed, and to do so to the criminal standard. The fact that he had made adverse findings about Mr Ross-Jones in the past does not in my view disentitle him from taking that position.
25. The next incident involved Mr Cartwright. The judge's findings in relation to this incident involved believing Mr Cartwright when he says he had discovered a letter in the letter box of Greenfield House, delivered by Mr McKenzie, which was anonymous but which made some very unpleasant allegations both about Mr Cartwright and about Mr Ross-Jones. The judge records the evidence in this way:

"The second alleged incident took place on 3 September 2003 and in this regard the applicant's witness is Mr Emlyn Cartwright, one of her tenants at Greenfield House. Mr Cartwright's evidence was that, at about 8 a.m. on that day, being a day when the applicant and Mr Ross-Jones were not present at the property, he looked out of a window and saw first the red car which the respondent owns being driven along Greenfield Road and then the respondent, on foot, on the pavement by the gate to the property; that soon afterwards he, Mr Cartwright, went out to the shops and on his way looked into the red letter box affixed to the front gate; that, although he found that the Royal Mail had not yet delivered the post, he found within the box an envelope, unstamped and addressed in type to 'Owner/Occupier Greenfield House'; that on the following day, when the applicant visited Greenfield House, he gave the envelope to her, that she opened it and showed him the contents"

which were, as I indicated earlier, extremely offensive.

26. In relation to this incident, Mr McKenzie argued that the reference to the red car was not in Mr Cartwright's affidavit or witness statement and, moreover, Mr McKenzie would have been in a position to prove that he had disposed of that particular car some time before. So that the judge, had he known those facts, would not have made the finding and would have been able to find that Mr Cartwright was not telling the truth.
27. The difficulty about this today from Mr McKenzie's point of view is that none of these matters were apparently put to Mr Cartwright, and the judge was not reminded that reference to the car had not been in the statement and was a fabrication. The judge was therefore dealing with the matter on the evidence as placed before him. In my judgment, even if the judge was wrong (and there is no reason to say he was) to find that Mr Cartwright had accurately remembered the car, the judge was in my view entitled to find, notwithstanding the denial by Mr McKenzie, that Mr McKenzie had in fact written the letter.
28. Mr McKenzie told us today that, although he finds the ongoing war between himself and his former wife deeply dispiriting, these matters are currently in the hands of the local police who are investigating allegations of perjury and conspiracy to pervert the course of justice. Of course if it were to be the case that those investigations resulted in a positive outcome from Mr McKenzie's point of view and were he able to be able to establish that the truth had not been told to Wilson J, it would of course be open to him to apply back to Wilson J or to the court to set aside the judgment made against him and the orders for committal. But from our perspective, looking at the matter as we do here, in my judgment the judge cannot be criticised either for the finding which he makes or his finding that it was a breach of the undertaking.
29. The fourth finding, which relates to a letter to Mrs De Montford, does not involve a finding of credibility and did not attract a penalty. The final finding involved writing to Mr Hodd: again, that has nothing to do with credibility. In my judgment the judge was fully entitled, on those letters alone, to find that they were harassment of Mrs De Montford and to impose the penalty which he did.
30. There was a further allegation (involving a number of occasions when Mr McKenzie was said to have parked his car within 400 yards of the property) which the judge did not find made out. This involved the judge rejecting the evidence of Mr Cartwright as mistaken.
31. How then do these matters fit into the previous findings Wilson J made? In June 2001 Wilson J was being asked to grant Mrs De Montford injunctive relief. He refused to do so. I think earlier in this judgment I stated in error that Wilson J had a copy of Connell J's judgment in February 2004. In fact he did have a copy when he gave his earlier judgment in 2001. He had read that judgment at that point, which related to the application for ancillary relief. He adopted Connell J's assessment of both parties as "essentially dishonest" and that the conduct of the one was as blameworthy as that of the other. He also recorded Mr McKenzie as clearly hating Mr Ross-Jones and describing him habitually as a "knobhead".
32. The judge had to decide a number of incidents about Mr McKenzie's behaviour. The first involved Mr Cartwright, who gave evidence about a particular incident when Mr McKenzie had made a visit to the property. The judge in 2001 described Mr Cartwright as "on balance, a good witness". The incident described was not substantially in dispute and the judge did not find that it amounted to intimidation by Mr McKenzie against Mrs De Montford. Later in the judgment, the judge described Mr Cartwright as "suggestible" and advanced his belief that Mrs De Montford and perhaps in particular Mr Ross-Jones had put false words into his mouth and into his affidavit. The judge took the view that the motive for the injunctive relief being sought was essentially that of revenge.
33. Does that or any of that weaken or invalidate Wilson J's findings in February 2004? I do not think so. The judge's assessment of Mr Cartwright is essentially the same and, as I indicated earlier, in any event in my view the judge was manifestly entitled to reject Mr McKenzie's denial that he had written the anonymous letter Mr Cartwright had found in the postbox.
34. As to Mr Ross-Jones, whilst the judge is critical of both Mr Ross-Jones' motivation and behaviour in the first judgment, nothing in that judgment would, in my view, prevent the judge from finding as a fact that Mr Ross-Jones was telling the truth about the driving incident. The judge in the current proceedings described an incident between Mr McKenzie and Mr Ross-Jones which the former denied and of which the judge said the latter's evidence did not lead him to feel satisfied that on the balance of probabilities it had occurred. That, to my mind, demonstrates the care which Wilson J took in his assessment of the witnesses. He by no means found that each was telling the truth on every part of the case. As I have already said, and as my Lord indicated, a witness may be reliable on incident A and inaccurate or wrong about incident B. It is a matter for the trial judge in every case to form a view.
35. Finally, I have to say that, even if one takes out of the equation the breaches which I have identified and which are numbered 1, 2 and 4, one is still left with the letters written by Mr McKenzie, which are not only offensive, but plainly in breach of his undertaking. Either or both of these incidents, in my judgment, would warrant findings of contempt and a suspended sentence of imprisonment.
36. In summary, therefore, in my judgment the judge was right to proceed with the case and fully entitled to make the findings he did. No criticism can be made about the penalty he imposed, or the additional injunctions he granted. Indeed, on one view of the case Mr McKenzie may think of himself as having been dealt with leniently by the judge. It is a thousand pities that these two parties cannot now draw a line in the sand and leave each other alone. But that of course is not a matter for this court.
37. For these reasons, I would therefore dismiss this appeal.
38. LORD JUSTICE NEUBERGER: I agree. There is nothing I can usefully add, because my reasons for agreeing are precisely those given by my Lord.

ORDER: Appeal dismissed.

(Order not part of approved judgment)