http://www.bailii.org/ew/cases/EWHC/QB/2012/3716.htmlNeutral Citation Number: [2012] EWHC 3716 (QB)
Case No: HQ1ZX01835
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
20/12/2012
B e f o r e :
THE HON. MR JUSTICE MALES
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Between:
The Lord Mayor and the Citizens of the City of Westminster
Claimant
- and -
(1) Addbins Limited
(2)Addison Lee PLC
(3) Mr John Griffin
Defendants
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Saira Kabir Sheikh (instructed by Westminster City Council Legal & Democratic Services) for the Claimant
Nicholas Trompeter (instructed by Forsters LLP) for the Defendant
Hearing date: 10th December 2012
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
The Honourable Mr Justice Males :
Introduction
1.This is an application by Westminster City Council for an order that the defendants, Addbins Ltd and Addison Lee Plc, be fined and that Mr John Griffin, the founder and chairman of Addison Lee Plc and a director of both companies, be committed to prison for contempt of court. Westminster contends that the defendants and Mr Griffin wilfully failed to comply with an order of this court requiring the removal of advertisements from cigarette bins erected without advertisement consent. The defendants contend that Westminster's application notice is too vague and general to hold them liable for contempt, that any failure to comply with the court's order was unintentional and that in any event compliance was impossible, and that the application to commit is disproportionate and an abuse of process because they had informed Westminster that they intended to comply and were in the process of complying with the order. In addition Mr Griffin says that, whatever the position of the companies, there was no failure on his part such as to render him personally liable for contempt, and that the proceedings against him should be struck out because the court's order was not served on him personally.
The order of Edwards-Stuart J
2.The order of which it is said that the defendants were in contempt was made by Edwards-Stuart J on 15 June 2012.
3.It was endorsed with a penal notice in the following terms:
"PENAL NOTICE
IF YOU THE WITHIN NAMED ADDBINS LIMITED OR ADDISON LEE PLC WITHOUT THE GRANT OF EXPRESS ADVERTISEMENT CONSENT DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND LIABLE TO IMPRISONMENT OR YOUR ASSETS SEIZED
IMPORTANT
Notice to the Defendants
You should read the terms of this Order and the Guidance Notes very carefully.
You are advised to consult a solicitor as soon as possible.
If you disobey this Order you may be found guilty of Contempt of Court and may be sent to prison or fined. In the case of a Corporate Defendant, it may be fined, its Directors may be sent to prison or fined or its assets may be seized."
4.The order itself provided:
"IT IS ORDERED that:
The Defendants shall no later than 14 days from the date of this Order:
(1) remove from the City of Westminster's area all cigarette bins erected without advertisement consent in breach of section 224 of the Town and County Planning Act 1990 and the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 and displaying either the logo of the 1st or 2nd Defendant.
The Defendants are forbidden from:
(2) erecting or displaying any advertisements requiring express consent without obtaining such consent in accordance with Town and Country Planning (Control of Advertisements) (England) Regulations 2007."
5.Fourteen days from the date of the order was 29 June 2012.
Background
6.Addison Lee is a public company that provides minicab and vehicle rental services. Addbins is a subsidiary of Addison Lee. Mr Griffin is the chairman of Addison Lee, which he founded, and is a director of both companies. His evidence was that the companies employ some 5,000 people.
7.This case is concerned with metal cigarette bins affixed by Addison Lee and/or Addbins to the outside of various buildings within the City of Westminster. The bins were intended to be used by smokers who needed somewhere to put their cigarette stubs. They were designed so that they could display advertisements and they were employed, among other things, for the purpose of advertising the services of Addison Lee. The advertisements took two forms. One set out Addison Lee's telephone booking number and the other provided what is known as a "Quick Response Code".
8.The bins were provided by the defendants at their own cost, with no charge to the owners of the premises to which they were attached. Mr Griffin's evidence in the Westminster Magistrates Court proceedings referred to below was that the bins provided valuable publicity for Addison Lee's minicab services, and that in addition they represented a source of considerable potential advertising revenue, with numerous enquiries received from interested advertisers. In the event, however, as he explained in his evidence to me, that advertising revenue did not materialise. It is Mr Griffin's strongly held view that in addition to providing his companies with valuable but unquantifiable publicity, the provision of these bins provides a benefit to the public in the form of cleaner pavements, and indeed to Westminster which would otherwise be faced with the cost of cleaning up millions of cigarette stubs dropped on the pavements each year. It appears that this view is shared by the owners of the premises where the bins are erected and by other local councils within London, a total of some 19,000 bins having been erected across 6,500 locations in London as a whole.
9.Westminster, however, takes a radically different view. Mrs Chidiebele Freeman is a senior planning officer in Westminster's Planning Enforcement Team which is responsible for investigating breaches of planning control. According to her witness statement dated 8 May 2012 made in support of Westminster's application for the injunction with which this application is concerned, the council considers that the advertisements "were unacceptable on the grounds of the negative visual impact that they had on the buildings on which they were displayed and the surrounding conservation areas" and that they caused "substantial harm to visual amenity by reason of their prevalence and their undue prominence on the street scene causing visual clutter".
10.It is no part of the court's function on this application to decide between these conflicting views of the utility or desirability of the bins.
11.Because the cigarette bins displayed advertisements for the services of Addison Lee, they constituted advertisements for the purposes of the Town and Country Planning Act 1990 and the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 and, as such, they required express advertisement consent from Westminster. However, no such express consent was sought when the bins were erected, with the consequence that the display of the advertisements constituted an offence under section 224 of the Town and Country Planning Act 1990. It was so held in criminal proceedings against Addbins and Addison Lee in the Westminster Magistrates Court on 21 April 2010 and an appeal by way of case stated was dismissed by the Divisional Court on 12 January 2012 ([2012] EWHC 152 (Admin)). Those proceedings related to 21 specified locations, but it has not been suggested that there is any material difference so far as criminal liability is concerned between those specified locations and the many hundreds of other locations throughout Westminster at which the bins have been erected.
12.The conclusion of the criminal proceedings in January 2012 might have been expected to end the long running dispute between Westminster and the defendants, going back to June 2008, by removing any doubt as to whether the display of the advertisements on the bins constituted a criminal offence. It might also have been expected that, having been found guilty, the defendants would take prompt steps to ensure that they were no longer committing an offence by removing the remaining unlawful advertisements. However, despite repeated pressure from Westminster in correspondence to the defendants' solicitors, Forsters LLP, for the advertisements to be removed, the defendants took no steps to do so.
13.Mr Griffin told me that he decided that the bins displaying the advertisements should not be removed because he had arranged a meeting with the council for 24 April 2012 at which he hoped to find an amicable solution. That may have been Mr Griffin's hope, but in view of the council's long-standing determination to have the advertisements removed and its repeated insistence in correspondence after the decision of the Divisional Court that this should happen, any such hope was not likely to prove well founded. Although not directly relevant to the issue of contempt because there was at this stage no injunction in place, the deliberate and sustained failure of the defendants to remove the advertisements, display of which had been established to be a criminal offence, forms a relevant part of the background to Westminster's application to commit the defendants for contempt, and in particular bears on the question whether that application is an abuse.
14.The meeting of 24 April 2012 did not produce any agreed solution. Mr Griffin offered to enter into negotiations with a view to replacing the existing advertisements on the bins with advertisements for Cancer Research or a similar charity, together with a small logo indicating that the bins were sponsored by Addison Lee, but this proposal was unacceptable to Westminster and the meeting ended abruptly after the Westminster representatives advised that unless the advertisements were removed the council would commence further prosecutions or seek an injunction.
15.Two days later, on 26 April 2012, and somewhat optimistically in the circumstances, the defendants' solicitors repeated the offer to enter into negotiations to replace the existing advertisements with advertisements for a cancer charity, but Westminster's response in a letter dated 3 May 2012 was that before such discussions could take place the 3,000 existing unlawful advertisements, many of which were in conservation areas or on listed buildings, had to be removed. The letter indicated, however, that the proposal to replace all of the existing advertisements was unlikely to be acceptable, because the problem from Westminster's point of view was a result of the size, prominence and cumulative impact of the existing advertisements, a problem which would not be solved by replacing them with adverts for a charity. It went on to say, however, that there might be scope for a much smaller advert in the form of a logo for Addison Lee, but only on a reduced number bins located in acceptable places.
16.It is worth pausing on this letter because Mr Griffin's evidence to me was that he had been told categorically by Westminster that the bins had to be removed and that there were no circumstances in which Westminster would allow them to remain, whereas in truth Westminster's only valid reason for objecting to them was the presence of advertisements. He insisted that not only he but also the court had been misled by Westminster, which was acting in bad faith. I do not accept this and do not accept that there exists any rational basis for the allegation. It was an allegation made only during Mr Griffin's oral evidence, and therefore had not been addressed in Westminster's own evidence, but it is clear from the judgments in the criminal proceedings and from Mrs Freeman's witness statement in support of the application for an injunction that the objection was always to the presence of advertisements on the bins. Moreover, the letter of 3 May 2012 spelled out in clear terms that Westminster's objection was to the advertisements rather than to the bins themselves, albeit that where an advertisement or logo formed an integral part of the bin, the distinction was somewhat hypothetical.
17.On 11 May 2012 Westminster issued a claim form against Addbins and Addison Lee, seeking "an injunction pursuant to section 187B of the Town and Country Planning Act 1990 to restrain and remedy actual and apprehended breaches of planning control." On the same date, Westminster issued an application notice for an injunction in the terms set out at [3] and [4] above, including the 14 day deadline for the removal of the unauthorised advertisements. These documents were served on the defendants' solicitors, who then wrote on 14 May 2012 as follows:
"Our client is aware that the continued display of the adverts constitutes an offence and will therefore arrange for the adverts to be removed. As you are aware there are over 3000 adverts in Westminster, therefore we would ask that the Council provides a suitable amount of time for the removal to be carried out."
18.It is apparent that the defendants were fully aware of the number of adverts needing to be removed, and therefore of the scale of the removal exercise which would be required. They had by this time been served with notice of the order which Westminster proposed to seek and, although the letter referred to "a suitable amount of time", there was no indication of what that suitable amount of time might be, and no complaint that 14 days would be insufficient. Further, although this letter promised that the defendants would arrange for the adverts to be removed, at this stage they continued to do nothing to implement that promise.
19.Westminster addressed the request for time in its letter dated 15 May 2012, which also gave notice that its claim for an injunction had been listed for 15 June 2012:
"... Although I note your client's intention to remove the unauthorised advertisements and your request that the Council provides a suitable amount of time for these to be removed, I would inform you that the Council considers that your clients have had ample opportunity to remove the advertisements. Not only did your clients fail to remove the advertisements but they failed to give any indication that the advertisements would be removed at any time prior to the commencement of the Council's claim, notwithstanding the fact that the Council invited your clients to remove them on a number of occasions."
20.In response, on 29 May 2012 the defendants' solicitors confirmed that the defendants would not be opposing the application for an injunction.
21.Accordingly the injunction was duly granted by Edwards-Stuart J on 15 June 2012. It was not opposed by the defendants, although they did make representations as to costs. They did not ask for additional time beyond the 14 days referred to in the order and did not suggest that it would be impossible or even difficult to comply with that deadline. On the same day Westminster wrote to the defendants' solicitors enclosing the as yet unsealed order, and drawing attention to the 14 day deadline and the penal notice. This was followed on 20 June 2012 by service of the sealed order. However, the order was not served personally on Mr Griffin.
The committal application
22.The defendants did not comply with the order of Edwards-Stuart J. By 29 June 2012 several thousand bins displaying advertisements remained in place. I consider below the evidence as to what the defendants in fact did and whether their conduct constituted a contempt, but there is no doubt that the defendants did not do what the order required them to do and it was not suggested on their behalf that they did.
23.On 10 July 2012 Westminster wrote to the defendants' solicitors, referring to the defendants' failure to comply with the order even though more than three weeks had passed since it was made and advising that the council now intended to commence committal proceedings.
24.On 11 and 12 July Mrs Freeman carried out an inspection to see to what extent the defendants had failed to comply with the order. She did not attempt to investigate the position in every street in Westminster, which would obviously have been a major undertaking. Instead, she investigated a selected area and took photographs of the bins in streets where they were present in large numbers. These were the streets which were to be specifically identified in the application notice (see [28] below).
25.On 12 July 2012 the defendants' solicitors wrote in response to Westminster's notification of its intention to commence committal proceedings:
"Our client has confirmed that to date they have removed the cigarette bins (the "Bins") from 83 premises within Westminster. In relation to some of these premises more than one bin has been removed. (A copy of a spreadsheet setting out the premises from which the Bins have been removed is attached). …
As you are aware, our client is required to remove circa 3000 bins from within Westminster, which is undoubtedly a major task for our client to undertake. In light of this, and the fact that our client has begun to remove all of the Bins, we should be grateful if the Council could refrain from commencing committal proceedings.
Finally, as soon as all the Bins have been removed, we will write to you with an updated schedule.
If you have any queries please contact us."
26.Although some (the letter did not say how many) of the 83 premises from which bins had removed had contained more than one bin, it was obvious that only a very small proportion of the total exercise had so far been completed; there was no indication of what steps if any had been taken to comply with the order within the stipulated deadline, only that some four weeks after the making of the order the exercise of complying with it had "begun"; and there was no indication of when the defendants expected that compliance to be complete.
27.Westminster's reply on 19 July 2012 was that committal proceedings would be commenced as it did not consider the reasons given by the defendants for failing to comply with the order to be reasonable. On 24 July 2012 the application to commit the defendants and Mr Griffin was issued. The application notice sought an order that the defendants be fined and that Mr Griffin, who was identified as a director of the defendants, be committed to prison. The reason given for the application was that:
"The Defendants and Mr Griffin have acted in breach of the Order in the following way: (1) by failing to remove by 20 June 2012 [sic] from within the City of Westminster's area all cigarette bins erected without advertisement consent in breach of section 224 of the Town and Country Planning Act 1990 and the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 and displaying either the logo of the 1st or 2nd Defendant; (2) by erecting or displaying advertisements requiring express consent in the City of Westminster's area without obtaining such consent in accordance with the Town and Country Planning (Control of Advertisements) Regulations 2007.
The Defendants and Mr Griffin were in breach of the Order on 11 and 12 July 2012 and remain in continuing breach of the Order at the date of this application."
The date of 20 June 2012 was an obvious slip for 29 June.
28.A continuation sheet attached to the application notice contained more detail of the allegations of contempt. After referring to the order, and its service on the defendants' solicitors, it stated:
"7. In wilful breach of the terms of the Order and this honourable Court aforesaid and in contempt of that Order:
(1) On 11 and 12 July inspections carried out by the Council's enforcement officers revealed that a large number of cigarette bins had not been removed from within the City of Westminster
(2) On 11 July 2012 an inspection carried out by Chidiebele Freeman revealed that cigarette bins had not been removed from the following locations: Praed Street, Norfolk Place, Sussex Gardens, Edgware Road
(3) On 12 July 2012 an inspected carried out by Chidiebele Freeman revealed that cigarette bins had not been removed from the following locations: Vauxhall Bridge Road, Warwick Way, Warwick Place North, Belgrave Road."
It stated also that Westminster would rely on the affidavit of Mrs Freeman dated 24 July 2012, which described some of the background set out above and the inspections which she had carried out on 11 and 12 July and exhibited the photographs which she had taken.
29.On 25 July 2012 the defendants' solicitors acknowledged receipt of the application notice and confirmed that they were instructed to act on behalf of the defendants and Mr Griffin, adding:
"… as set out in our letter to you dated 12 July 2012, our client has started to remove the bins pursuant to the Injunction and will continue to do so."
30.This was followed by a letter dated 8 August 2012, which enclosed an updated schedule of the locations from which bins had been removed by the defendants since the previous schedule sent on 12 July 2012. Whereas in the 27 days between the making of the order on 15 June 2012 and the first schedule sent on 12 July bins had been removed from only 83 locations, in the further 27 days which had now passed the updated schedule indicated that bins had been removed from several hundred locations. A further updated schedule was provided on 12 September 2012 and on 8 November 2012 the defendants' solicitors reported that all of the bins had been removed:
"... Regarding the removal of the cigarette bins ("the Bins") within Westminster, our client has provided us with a further updated schedule indicating that all of the Bins have now been removed ... In light of the above, we would request that the Council agree to the discontinuance of the committal proceedings. ..."
31.Westminster did not agree to discontinue the proceedings and on 19 November 2012 identified three locations where bins were reported to be still in place. Although it appears that these particular bins have now been removed, there remained some uncertainty whether all of the bins displaying advertisements had been removed by 11 December 2012, the date of the hearing before me. Mrs Freeman stated in evidence that Westminster was continuing to find such bins and Mr Nicholas Trompeter, counsel for the defendants and Mr Griffin, accepted that he could not suggest that every bin had been removed. It seems likely, however, that if there are such bins still in place, there is only a small number of them.
The issues
32.As already indicated, the defendants accept that they did not comply with the order of Edwards-Stuart J. They contend, however, that they were not in contempt, and that the committal application ought to fail, for three reasons.
33.First, they say that Westminster's application notice is too vague and general, because it fails to provide sufficient particulars of what it is that they have done or failed to do which constitutes contempt, so that they have not been given proper information as to the case which they have to meet. This issue requires a focus on the terms of the application notice and does not depend on what the defendants actually did or failed to do.
34.Second, they say that Westminster has produced no evidence that the defendants' failure to comply with the order was deliberate, and that in fact it was unintentional and indeed inevitable. They say in this regard that compliance was impossible, bearing in mind the large number of bins in Westminster and that the defendants did not know the location of all of them, and the fact that the bins were attached to the premises of third parties whose cooperation and understanding the defendants would wish to ensure.
35.Third, the defendants say that this application to commit is disproportionate and an abuse of process because they had informed Westminster that they intended to comply and were in the process of complying with the order. Indeed Mr Griffin complained in his evidence that Westminster is pursuing a campaign of harassment against him personally. This issue overlaps to some extent with the second issue just described. If any breach of the order was trivial and inadvertent, that might justify a conclusion that committal was disproportionate, although it would also mean that there was no contempt. Conversely, if a breach was serious and culpable, it could hardly be said that the application was an abuse of the court's process. In view of this overlap it seems to me that it is appropriate to consider the question of abuse in the light of all the evidence, and indeed it was the third of the points made by Mr Trompeter, rather than to treat it as in effect a preliminary issue, although in other cases no doubt that course may be appropriate.
36.In addition to the points taken by the defendants, Mr Griffin says that the order was not made against him personally or served on him, and that the application to commit him should be struck out for failure to comply with this procedural requirement. As to this, Westminster, accepts that the order was not served on Mr Griffin but says that such service can and should be dispensed with. Mr Griffin says also that whatever the position of the companies, there was no personal failure on his part and no intention not to comply with the order such as to render him personally liable for contempt.
Committal – the law
37. Mr Trompeter for the defendants rightly emphasised a number of general principles. These included that the power to commit for contempt must be exercised only where the court is sure to the criminal standard of proof that the alleged contemnor is in breach of an unambiguous order, the burden of proof being upon the applicant, and that the application must make clear, with sufficient particularity, what is being alleged.
The need for particulars of the conduct alleged to constitute contempt
38.The procedural rules which govern committal applications are now to be found in CPR Part 81 which came into force on 1 October 2012. Before then, and at the time relevant to the present application, the applicable rules were contained in RSC Order 52, the Practice Direction to which provided:
"2.6 If a committal application is commenced by the filing of an application notice, CPR Part 23 shall ... apply, but:
...
(2) the application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt ...
...
4.5 In dealing with any committal application, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond to the committal application."
39.Equivalent provisions are now contained in CPR 81.10(3)(a) and paragraph 15.5 of the Practice Direction to Part 81.
40.The importance of such provisions was underlined by Cross J in Re B (JA) (an Infant) [1965] Ch 1112 at 1117:
"Committal is a very serious matter. The courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations."
41.In Harmsworth v. Harmsworth [1987] 1 WLR 1676 the county court judge had held that although the application notice did not contain sufficient particularity, that defect was cured by the supporting affidavit. The Court of Appeal took a different view, holding that the allegations must be set out with sufficient particularity in the application notice itself and could not be supplemented by reference to some other document such as a supporting affidavit, but that on the facts the notice did satisfy the applicable requirement. That requirement was described by Nicholls LJ in the following terms at 1683 after citing from the judgment of Sir John Donaldson MR in Chiltern District Council v. Keane [1985] 1 WLR 1401:
"So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the Rules and as I understand the decision in Chiltern District Council v. Keane, the Rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged ..."
42.Woolf LJ agreed, adding at 1685-1686 that what matters is that the alleged contemnor is "given particulars sufficient to let him know the subject matter of the breach which is alleged" and warning that proper emphasis on the involvement of the liberty of the subject must not be allowed "to produce a result which unnecessarily makes a mockery of justice". Woolf LJ returned to this topic in Attorney-General for Tuvalu v. Philatelic Distribution Corporation Ltd [1990] 1 WLR 926 at 934-935:
"The essential point which the cases establish is that an alleged contemnor should be told, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes contempt of court. The cases make clear that compliance with this rule will be strictly insisted upon since the liberty of the subject is at stake, but they also show the nature or background of the case is important. Where, for example, a non-molestation order is said to have been breached the complainant will in all probability have witnessed the act complained of personally and in such a case it is not unreasonable to require a particularised summary of the act relied on. It would not, however, be reasonable and would stultify this branch of the law if the same degree of particularity were required in a case where the complainant has not personally witnessed the act complained of and must rely on inference to establish that non-compliance with a court order was caused by the act or omission of the alleged contemnor. In such a case the complainant must make clear the thrust of the case he will present to the court. The alleged contemnor can then prepare to meet that case."
43.In summary, therefore, the application notice must contain sufficient detail of what is alleged to enable the alleged contemnor to meet the case against him, but that requirement must be applied sensibly and the level of detail required to be included in order to satisfy this test will depend on the circumstances of the particular case, including the nature of the acts or omissions alleged.
44.Related to the requirement for particulars of the conduct alleged to constitute the contempt is the further principle that an alleged contemnor is only required to meet the specified allegations of contempt made against him, which must be determined as at the date of the application notice. This appears from Tankaria v. Morgan [2005] EWHC 3282 (Ch) at [27], where Laddie J said:
"Applications for committal or punishment for contempt of Court are treated with particular care. They are quasi criminal in nature. The applicant must prove the breach beyond reasonable doubt; furthermore, there are strict formal requirements as to the service and content of the order which is alleged to have been breached, and the content of the application notice. Perhaps of greatest significance in this case is the importance of the date and content of the application notice. The respondent is only obliged to meet the "charges" set out in the application notice. In other words, the charges are those specified in the application notice. The question of whether there has been contempt has to be determined as of the date of the application notice. Subsequent behaviour of the respondent may be highly relevant to whether he or she has purged or mitigated the alleged contempt. It may also throw light on the accuracy or otherwise of any evidence served. However, it seems to me that actions or inactions after, and therefore not encompassed within the application, cannot themselves be considered as part of the charges against the respondent."
The mental element
45.The mental element required to be proved in order to establish a contempt was described by Christopher Clarke J in Masri v Consolidated Contractors Intl Co SARL [2011] EWHC 1024 (Comm) at [150]:
"In order to establish that someone is in contempt it is necessary to show (i) that he knew of the terms of the order; (ii) that he acted (or failed to act) in a manner which involved a breach of the order; and (iii) that he knew of the facts which made his conduct a breach: Marketmaker Technology (Beijing) Co Ltd v. Obair Group International Corporation & Ors [2009] EWHC 1445 (QB). There can be no doubt in the present case but that the judgment debtors have at all times been fully aware of the orders of this court. It is not and could not sensibly be suggested that the conduct of which complaint is made was casual or accidental or unintentional. However, the question arises whether it is, also, necessary to show that they acted knowing that what they were doing was a breach of, and intending to breach, any of the orders."
46.After considering the relevant authorities Christopher Clarke J held that there was no such additional requirement. Thus the applicant need not prove that a contemnor intended to breach, or knew that he was breaching, a court order.
47.The application of this mental element to a case where it was impossible to comply with the order was considered by Briggs J in Sectorguard Plc v. Dienne Plc [2009] EWHC 2693 (Ch). In that case as a result of carelessness on the part of the defendant an undertaking was given to disclose the identity of customers contacted by the defendant with which it was always impossible to comply because no records of such contacts had been kept. The undertaking on its true construction was held to be absolute and not merely to exercise best endeavours, and there was therefore a breach of it. However, Briggs J held that there was no contempt because a contempt involved some element of choice whether to commit the relevant act or omission:
"32. By contrast, I accept the thrust of Mr Grant's second submission that failure to perform an impossible undertaking is not a contempt. The mental element required of a contemnor is not that he either intends to breach or knows that he is breaching the court order or undertaking, but only that he intended the act or omission in question, and knew the facts which made it a breach of the order. …
33. Nonetheless, even a mental element of that modest quality assumes that the alleged contemnor had some choice whether to commit the relevant act or omission. An omission to do that which is in truth impossible involves no choice at all. Failure to comply with an order to do something, where the doing of it is impossible, may therefore be a breach of the order, but not, in my judgment, a contempt of court."
I will proceed on this basis as the contrary was not argued, although I note that dicta in other cases do speak, in the context of sanctions, of a contempt which was unintentional (e.g. Crystalmews Ltd v. Metterick [2006] EWHC 3087 (Ch) at [13]).
48.The question arises potentially in the present case whether this principle of impossibility should be extended to a case where compliance with the order is not impossible but is difficult or inconvenient. Although Mr Trompeter submitted that compliance with the order would have been impossible, it needs to be considered whether that is so, although no doubt compliance would have required greater resources to be committed to the task than the defendants were prepared to commit. I return to this topic after making the relevant factual findings.
Abuse of process
49.As is apparent from the cases already cited, applications to commit are treated with particular care in view of the potentially very serious consequences of a finding of contempt. The power to commit has been described as "the court's ultimate weapon in securing compliance with its orders" (JSC BTA Bank v. Solodchenko [2010] EWHC 2404 (Comm) at [15]). It follows that such applications must only be made for a proper purpose, and that applications which are made for an illegitimate purpose or which are pointless will be struck out. These principles were described by Briggs J in Sectorguard at [44] to [46]. He identified the proper purpose of committal proceedings at [47]:
"Contempt proceedings are an appropriate way, albeit as a last resort, of seeking to obtain the compliance by a party with the court's order (including undertakings contained in orders), and they are also an appropriate means of bringing to the court's attention serious rather technical, still less involuntary, breaches of them. In my judgment the court should, in the exercise of its case management powers, be astute to detect cases in which contempt proceedings are not being pursued for those legitimate ends."
The position of a director
50.Mr Griffin is not a party to the proceedings in which the order was made, although he is a director of both defendants. The position of a director in such circumstances was explained by Woolf LJ in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926 at 936E-F:
"In our view where a company is ordered not to do certain acts or gives an undertaking to like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. We use the word 'wilful' to distinguish the situation where the director can reasonably believe some other director or officer is taking those steps."
51.In Sectorguard Briggs J rejected a submission that breach of an undertaking by a company automatically disclosed a case to answer against all the directors. He stated the true position as follows at [42]:
"I consider that the effect of the Tuvalu case is that an applicant for the committal of a company director who relies upon a breach by the company of an order or an undertaking must disclose in the committal application a case for the establishment of responsibility on the part of that director, either on the grounds of aiding and abetting or wilful failure to take reasonable steps to ensure that the order or undertaking is obeyed."
52.RSC Order 45 r.7(3) provided at the material time:
"(3) ... an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5(1)(b)(ii) or (iii) [viz. by a writ of sequestration or by an order for committal] unless –
(a) a copy of the order has also been served personally on the officer ... against whom an order of committal is sought; and
(b) in the case of an order requiring a body corporate to do an act, the copy has been served before the expiration of the time within which the body was required to do the act."
53.As already indicated, Mr Griffin was never personally served (or indeed served at all) with a copy of the order. Accordingly, he relies on Westminster's failure to comply with this rule as the basis for an application to strike out the committal application as against him personally. However, as it was accepted that the court has the power to dispense with such service, I indicated that I would not determine the strike out application before hearing all of the relevant evidence.
54.Although Mr Trompeter drew attention to the observation by Neuberger J in Bell v. Tuohy [2002] EWCA Civ 423, [2002] 1 WLR 2703 at [41] that a discretion to dispense with a formal requirement, in that case the existence of a penal notice, should be exercised "relatively sparingly", the same paragraph of the judgment also refers to this discretion as being "expressed in terms of a wide and unfettered discretion", while the decision in the case as a whole suggests that the primary consideration is whether the defendant was prejudiced by the failure to comply with rules. As the defendant in that case was not prejudiced in any way, having been present in court when the order was made and knowing not only what he was required to do but also that he was at risk of committal to prison if he failed to do it, the Court of Appeal did dispense with the requirement for a penal notice. A similar approach was adopted by Vos J in Gill v. Darroch [2010] EWHC 2347 (Ch) at [38] and [39] after an extensive review of the authorities.
Should service of the order on Mr Griffin be dispensed with?
55.It is clear, and Mr Griffin accepted, that he was aware of the terms of the order immediately it was made and it was not suggested that he was in any way prejudiced by the fact that the order was not served on him personally. Indeed it can only have been Mr Griffin who had given instructions that the defendants would not oppose the making of the order. Although not served upon him, the order was endorsed with a penal notice which made clear that in the event of disobedience to it a director might be sent to prison or fined. Mr Griffin had the benefit of legal advice with experienced solicitors acting for him who were thoroughly conversant with the dispute and able to advise him, as no doubt they did, as to his responsibilities. In these circumstances while I accept that the requirement for service on a director is an important safeguard and that a finding of contempt is a serious matter with serious consequences, as Mr Trompeter submitted, it is in my judgment appropriate to dispense with the requirement of service.
Were sufficient particulars given?
56.In relation to the defendants Mr Trompeter's argument that the application notice failed to give sufficient particulars had four strands. The first was that the application notice itself merely mirrored the terms of the order of Edwards-Stuart J without identifying the respect in which the defendants had failed to comply with that order. The second was that paragraph 7(1) of the continuation sheet (which he accepted formed part of the notice) referred very generally to "a large number" of cigarette bins which had not been removed without identifying the location of such bins. The third was that even paragraphs 7(2) and 7(3) of the continuation sheet did not identify the precise location of bins remaining on the specified streets, some of which (eg Edgware Road) were very long. The fourth was that defects in the application notice could not be cured by reference to Mrs Freeman's affidavit.
57.I accept in the light of the authorities referred to at [40] to [44] above that particulars of the allegation must be found in the application notice itself and that despite the reference to Mrs Freeman's affidavit in the continuation sheet, the contents of that affidavit cannot be resorted to if they are not contained in the notice. However, the notice, including the continuation sheet, must be read sensibly and as a whole in the light of the background as it was known to the parties. Reading it in this way the question is whether the notice gave the defendants enough information to meet the charge against them or, in other words, whether it was sufficiently clear to tell them what Westminster was complaining that they had done or failed to do. I have no doubt that it was.
58.It is clear from the application notice and continuation sheet read as a whole that the particulars relied on by Westminster relate to the streets specified in paragraphs 7(2) and 7(3) of the continuation sheet. Paragraph 7(1) refers to inspections held on 11 and 12 July 2012 during which it was found that a large number of cigarette bins had not been removed, and paragraphs 7(2) and 7(3) identify the streets where those inspections had taken place. So the application notice identified the streets of which complaint was made. It was in my judgment unnecessary for the application notice to identify the particular addresses on the streets where it was said that bins containing unauthorised advertisements remained. The defendants would know, or could reasonably be expected to know, where they had erected cigarette bins on those streets and whether they had taken steps to remove them. Mr Trompeter pointed out that the charge sheet in the criminal proceedings had identified the location of the bins which were the subject of those proceedings with much greater precision than the application notice in these committal proceedings. That is true, but does not matter. What matters is whether the test set out in the authorities was satisfied and I have held that it was. In any event in Harmsworth at 1686 Woolf LJ specifically rejected any suggestion that an application notice in the committal proceedings had to be drafted as though it was an indictment in criminal proceedings.
59.In any event this whole argument is extremely artificial. By the date of the application notice the defendants' solicitors' letter dated 12 July 2012 had already admitted their extensive failure to comply with the order (see [25] above). The issue of substance would be whether they had a valid reason for non-compliance so as to avoid a finding of contempt, a point on which Mr Trompeter accepted that they would bear an evidential burden, albeit that the ultimate legal burden would remain on Westminster to prove its case. In such circumstances, to hold that the application notice was defective because it failed to identify with sufficient precision the precise location of the many hundreds of advertisements which the defendants admitted that they had failed to remove would indeed be, to borrow Woolf LJ's words in Harmsworth, "to produce a result which unnecessarily makes a mockery of justice".
60.In relation to Mr Griffin, I consider below the factual position as to his involvement and responsibility for the failure to comply with the order. So far as the application notice is concerned, however, I consider that sufficient details were given to enable him to know the case he had to meet. It was sufficiently clear from the application notice, considered against the background of Mr Griffin's extensive personal involvement in this long running dispute, that Westminster's case was that Mr Griffin as a director of both companies was personally responsible for ensuring compliance with the order and that he had deliberately or recklessly failed to do so. In circumstances where non-compliance with the order had been admitted there could be no doubt that Mr Griffin would need to explain how and why that non-compliance had come about, and why it did not amount to a contempt. As I have already said, Mr Trompeter accepted that the defendants (and therefore, by implication, Mr Griffin also, subject to the question of dispensing with service of the order upon him) would have an evidential burden to explain the failure to comply. I have no doubt that Mr Griffin and those advising him fully understood this necessity, and that was in fact the case which he came prepared to meet. Once again that case did not depend upon identifying the precise location of particular advertisements. Nor could Westminster reasonably be expected to give details of precisely what Mr Griffin had done or failed to do to ensure compliance. Those were matters entirely within the defendants' and Mr Griffin's knowledge.
61.Accordingly I reject the defendants' and Mr Griffin's first submission. The application notice satisfied the relevant requirements.
Did the non-compliance with the order amount to a contempt?
62.Mr Griffin and Mr Matthew Giles, an employee of Addbins, gave evidence both in writing and orally. Written evidence was given by Mr Benjamin Coull and Mr Anthony Miller, both employees of Addbins, as well as by Mr Michael Levey of Forsters LLP.
63.I have already indicated that there are some aspects of Mr Griffin's evidence which I do not accept. Clearly, he is a forceful personality who believes strongly that he has provided a worthwhile public service which also has the benefit of generating useful publicity for his companies, and that Westminster is acting in bad faith and in a way which he finds "astounding". As he put it in his witness statement, his opinion is "that the Council has used this whole process as an opportunity to cause the Corporate Defendants difficulties in their efforts to assist the local community in reducing litter problems related to cigarette waste". He regards Westminster as being engaged in a campaign of harassment against him, which is contrary to common sense and a waste of ratepayers' money. I consider, however, that these strongly held and forcefully expressed opinions have to some extent coloured Mr Griffin's evidence before me, just as they coloured his conduct at the time. Although he insisted that the companies were complying with the order of Edwards-Stuart J and did not intend to disobey it, his evidence as to what he actually did and when he did it was somewhat vague.
64.Mr Giles' evidence was brief, but I consider him a reliable witness and accept his evidence. Mr Coull and Mr Miller were the van drivers charged with the actual removal of the bins. Their witness statements were in identical terms.
65.In the light of the evidence given by these witnesses and having regard to such few contemporary documents as exist, I make the following findings of fact.
66.Nothing was done by the defendants before making the order either to remove advertisements (which for practical purposes, would mean removing the bins themselves) or to make preparations to do so. The defendants had already recognised that removal of the bins would be a substantial task, with some 3,000 bins to be removed throughout Westminster, and they knew well in advance that the application for an injunction was to be made and, as they had indicated that they would not oppose it, that it would inevitably be granted. Nevertheless both Mr Griffin and Mr Giles acknowledged that nothing was done, and that not a single bin was removed, before the order was actually made on 15 June 2012.
67.Mr Griffin knew straight away on 15 June 2012 that the order had been made and he knew the terms of the order. He said that at some point after the order was made he gave instructions to his staff to take the bins down. However, he was unable to say when these instructions were given, save that it was some time before the deadline of 29 June 2012. On that date he signed letters in standard form, which were to be provided to the owners of premises from which bins were to be removed, explaining that this was necessary because of the injunction obtained by Westminster and blaming Westminster for the extra litter which would result and for the cost which would be incurred by businesses in replacing the bins. That letter included a statement that "We are in the process of taking down the bins in Westminster", which Mr Griffin said indicated that the process had by then already begun. This, however, sheds very little light on what, if anything, had actually been done up to that date, which was of course the last day for compliance with the order.
68.It appears that the instruction which Mr Griffin gave was given to a Mr Liam Dickerson, a marketing executive at Addison Lee, who in turn passed it on to Mr Giles. Mr Giles was unable to say when this happened, although he confirmed that it was after 15 June 2012. However, nobody told Mr Giles that there was any deadline for removing the bins, and he therefore had no reason to suppose that there was any urgency about the matter. He consulted the database maintained by the defendants, which provided comprehensive and accurate details of the locations at which bins had been erected. In one respect the database was not up to date, namely that if the owners of premises where bins had been erected had taken it upon themselves to move them, that would not be recorded in the database and the defendants would not know about it. However, Mr Giles agreed that such cases represented a low proportion of the total number of bins erected.
69.It was Mr Giles who then instructed Mr Coull and Mr Miller to remove the bins. In view of Mr Giles' evidence that he was given his instruction after 15 June 2012 and that nothing was said to him about the matter being urgent, I do not accept the joint evidence of Mr Coull and Mr Miller if and to the extent that they are saying that they began their review of the database on 15 June 2012. When they were first instructed is not at all clear. They go on to say that because the database was not 100% accurate, instead of using it they decided to conduct a physical search of all the streets in Westminster to locate the bins. I find that very surprising. Even if not 100% accurate, the database was, as Mr Giles made clear, substantially accurate.
70.Mr Coull and Mr Miller go on to say that when they arrived at a location where a bin had to be removed, they spoke to the owner of the premises (or if the owner was not present, made a note to return at a later date) to explain about the injunction and, if necessary, showed the owner a copy of Mr Griffin's letter dated 29 June 2012. That strongly suggests, and I find, that in substance the exercise of actually removing the bins only began on or after 29 June 2012 when this letter was produced. If any bins were removed before 29 June, they were few in number.
71.It is understandable that the defendants would wish to explain to the owners of the premises concerned why they needed to remove the bins, which the owners regarded as a valuable service and which they would not wish to lose. The defendants would no doubt wish to retain as far as possible the goodwill of the owners of those premises, whom they regarded in many cases as their customers, and Mr Griffin was keen to lay the blame for the removal firmly at Westminster's door. In addition, the removal of the bins would leave screw holes which might well cause some unhappiness on the part of the owners of the premises concerned. However, the court's order had to be complied with.
72.It would have been open to the defendants, in the event that they faced difficulties in complying with the order, to apply to the court for further time in which to do so. It is to be expected that in the event of any such application the court would have wished to know in some detail not only what the defendants had done to prepare the ground prior to the making of the order and in any event since 29 May 2012 when the defendants had given notice that they would not oppose the application for an injunction, but also what steps they had taken to comply with the order since it had been made and when they expected to complete such compliance. Given the history of this matter which I have set out and the slow pace of the progress being made, it is not necessarily the case that further time would have been allowed. As it was, however, the defendants did not give the court the opportunity to decide what extension of time, if any, was appropriate, but helped themselves to further time, presenting Westminster and the court with a fait accompli.
73.In these circumstances, although I am prepared to accept Mr Griffin's evidence that at some point after 15 June 2012 he gave instructions for the bins to be removed, I find that he made no serious attempt to ensure compliance with the court's order, which provided not merely that the advertisements should be removed, but that they should be removed by the deadline of 29 June 2012. He was the director at Addison Lee and Addbins who was responsible for ensuring compliance with the order, but he treated the matter with no urgency, no doubt as a result of his frustration and anger at what he regarded as the deplorable conduct of Westminster in prosecuting his companies and seeking an injunction against them. I would accept that this was not done in order to extract the last possible drop of commercial benefit from the presence of the Addison Lee advertisements on the streets of Westminster, as Miss Saira Sheikh for Westminster suggested in cross examination of Mr Griffin, but it is nevertheless hard to escape the conclusion that the defendants were dragging their feet in complying with the order.
74.Mr Griffin's evidence was that he gave the instruction, whenever it was that he gave it, and then left it to his staff to get on with the matter. However, in view of his close personal interest and involvement in the whole saga of the cigarette bins and (as he saw it) the personal nature of the antagonism towards him on the part of Westminster, I find it difficult to accept that he was not aware of the progress or lack of progress which was occurring. It is apparent from the whole course of the defendants' conduct during these committal proceedings, beginning from the content of their solicitors' letter dated 12 July 2012, that the defendants (including Mr Griffin personally) never expected to comply with the order within deadline of 29 June 2012. On the contrary, their position has been that such compliance was impossible and, in the letter dated 12 July 2012 itself, that making a start on compliance should be sufficient to avoid committal proceedings. I find, therefore, that at all material times Mr Griffin knew that the order would not be complied with and that there would not even be what I would regard as substantial compliance, but that he did nothing to speed things up either by ensuring that the process of compliance was treated with greater urgency or by committing greater resources to the task. In my judgment that is the only reasonable inference from the known facts. Nor did Mr Griffin suggest otherwise in his evidence. Rather, what his evidence came to was the assertion that because the defendants had begun to comply, or in the words of his 29 June 2012 letter were "in the process of taking down the bins", they were in compliance with the order. If that was his view it was wrong.
75.The question then arises whether it would have been possible to comply with the order within the deadline if a determined effort had been made to do so. However, defendants who in fact made no serious attempt to ensure compliance within the deadline are not in a strong position to persuade the court that such compliance would have been impossible. As it is, I do not accept that substantial compliance would have been physically impossible. It would have been a substantial task and would have required the commitment of much greater resources than sending two men in a van round the streets of Westminster to look for bins, which essentially is what the evidence of Mr Coull and Mr Miller amounts to. However, the defendants had numerous employees who could have been employed on this task, including briefing them to ensure so far as possible the maintenance of good relations with owners of the premises concerned, and proper use of the defendants' database would have enabled the prompt identification of the location of the great majority of the bins. I would accept that in all probability even a determined effort to comply might well have run up against the problem of locating some bins which had been moved since their original erection, and that some owners of premises might have created genuine difficulties for the defendants in preventing the removal of bins, which the defendants might not have been able to overcome within the deadline. However, I have no doubt that very much more could and should have been done to ensure compliance with the order than was in fact done.
76.In the light of these findings, were the defendants and Mr Griffin in contempt? In my judgment all of the elements of contempt referred to by Christopher Clarke J in Masri (see [45] above) are established. There was an admitted failure to comply with the order by failing to remove the advertisements in the streets identified in the application notice. The defendants and Mr Griffin personally knew the terms of the order and knew that they had acted or failed to act in a manner which meant that the order would not be complied with. They therefore knew of the facts which made their conduct a breach. It may be that they did not positively intend to breach the order, but they knew that this was the probable (indeed on their own case, inevitable) consequence of their failure to ensure a more determined effort to comply. No doubt they gave no thought to the fact that their failure to ensure compliance with the order would mean that bins would remain in the particular streets specified in the application notice, but in my judgment that makes no difference on the facts of this case.
77.In those circumstances the defendants' and Mr Griffin's conduct cannot be regarded as "casual or accidental or unintentional", to adopt the words used by Christopher Clarke J in Masri. Nor in my judgment is this a case where the principle of impossibility referred to by Briggs J in Sectorguard can be said to apply. As Briggs J explained in the passage quoted at [47] above, the reason why a failure to perform the impossible does not constitute contempt is because it involves no element of choice. A defendant who is ordered to do something impossible will inevitably fail, however hard he may try. The facts of the present case, where (leaving aside the possibility of the odd stray bin still remaining) the defendants have eventually done over a period of months what they were required to do within 14 days and which in substance they could have done within that deadline if they had chosen to do so, are far removed from those in Sectorguard.
78.Mr Trompeter submitted in reliance on JSC BTA Bank v. Ablyazov [2012] EWHC 237 (Comm) at [8] that if, after considering the evidence, I conclude that there is more than one reasonable inference to be drawn from the facts and that at least one such inference is inconsistent with a finding of contempt, the committal application must fail. I accept that principle, but on the facts which I have found the point does not arise.
79.Mr Trompeter submitted that the order was ambiguous because some of the bins, namely those which did not display an Addison Lee or Addbins logo but only the Addison Lee "Quick Response Code", were not advertisements. That point, however, would not mean that the order was ambiguous, but that there was no breach of it so far as such bins were concerned and, as there were undoubtedly some bins on the specified streets which did display logos, would not provide a complete defence. In my judgment, however, the point is a bad one. As Mr Griffin's own witness statement states:
"In addition to providing a receptacle for disposing of cigarette waste, the Bins also displayed two different types of advert for Addison Lee. One advert set out Addison Lee's telephone booking number and other provided what is known as a "Quick Response Code"."
80.I conclude therefore that the defendants and Mr Griffin were in contempt of the order in the respects alleged.
Is the committal application an abuse of process?
81.Finally, as will be apparent from what I have said so far, I do not consider that the application to commit constitutes an abuse of process. It may well be that Westminster is as frustrated with Mr Griffin and his companies as he is with Westminster. From Westminster's point of view there has been a long drawn out attempt to achieve the removal of advertisements the display of which constitutes a criminal offence. That attempt involved criminal proceedings in which the defendants were convicted but which did not result in the removal of the advertisements, followed by an injunction with which the defendants appeared to be making no serious attempt to comply. As Mrs Freeman pointed out in her evidence, the pace of removal of the advertisements quickened notably after the committal proceedings were commenced.
82.In these circumstances the committal proceedings were an appropriate way of seeking to obtain belated compliance with court's order, and have in the event proved to be successful in achieving that objective. As I said at the outset, it is no part of the court's function in this case to determine whether removal of the advertisements is a desirable objective. Many people might agree with Mr Griffin about that. However, the law allocates that responsibility to Westminster as the democratically accountable planning authority subject to the relevant provisions of planning law. Westminster is therefore entitled to take the view that the advertisements are unlawful and must be removed, and to invoke the court's process for that purpose. Whatever Westminster's view of Mr Griffin may be, I am satisfied that these proceedings were brought for a proper purpose and I see no evidence that they represent a personally vindictive campaign of harassment against him. Accordingly I decline to strike out the committal application.
Conclusion
83.I find that the defendants and Mr Griffin are in contempt of the order of Edwards-Stuart J.
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