On 8 August 2023, HHJ Bird, sitting as a judge of the High Court in the King's Bench Division, handed down judgment in the contempt of court case of Stockport MBC v Alexander and Others. Judgment followed a two-day trial in which Gary Lewis, instructed by Marc Livingston and Catriona Virden of Janes Solicitors, represented the successful defendant.
The case had a long and complex history, having started life as planning enforcement proceedings brought by the local authority under the provisions of the Town and Country Planning Act 1990. Those substantive proceedings culminated in a mandatory injunction order in December 2019 by which a planning application was required to be submitted by a date fixed for compliance in November 2020. Importantly, the mandatory order attached and expressly incorporated a comprehensive 42-point checklist which also had to be complied with to render that planning application valid under the terms of the injunction.
In January 2021, the local authority applied to commit the Defendant to prison alleging breach of that order. The matter finally reached trial in August 2023, having been stayed pending the outcome of an unsuccessful cross-application for an extension of time and an unsuccessful appeal to the Court of Appeal on that decision.
Following cross-examination of the local authority's planning officer at trial, it was conceded that the the claimant could not prove that one of the documents referenced in that 42-point checklist existed as at the date for compliance. Further, it was conceded that the claimant's agreement to waive the need for that particular document came on a date after the date fixed for compliance.
A decision was made not to call the defendant to give evidence and the matter therefore proceeded to submissions after the claimant's case was closed. The defendant relied upon the defence of impossibility.
In finding that defence made out and dismissing the committal application, HHJ Bird - following a careful review of the authorities concerning breaches of mandatory injunctions - held that, although the court was satisfied to the criminal standard that the order had not be complied with, he could not be satisfied to the same standard that the defendant had the power and ability to comply as at the date fixed for compliance. On a strict interpretation of the order, it was irrelevant that other parts of the 42-point checklist had not been complied with. The local authority had fallen into an understandable trap highlighted by the authorities of believing the defendant to be in continuing breach and therefore contempt of court.
The case serves as an important warning to would be committal-applicants seeking to enforce the terms of a mandatory order that you must be in a position to prove, to the criminal standard, that the alleged contemnor had the power and ability to comply with the order as at the date fixed for compliance. Alongside the need of ensuring that any such orders are carefully worded at the time they are granted, a pre-enforcement review should be undertaken to ensure that that strict test can, in fact, be met on the evidence. If not, consideration should first be given to varying and extending that underlying order before commencing contempt proceedings.
It is anticipated that a full copy of the judgment will be made available on BAILLI in the near future.