WX v YZ

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Rowe and Taylor, JJ.A)
• Judgment Date: 01 November 2002
• Court: Court of Appeal (Cayman Islands)
• Date: 01 November 2002

Court of Appeal

(Zacca, P., Rowe and Taylor, JJ.A)

WX

and

YZ

W.J. Helfrecht and Ms. A.M. Wild for the appellant;

S.T. McCann for the respondent.

Cases cited:

(1) Ansah v. Ansah, [1977] Fam. 138; [1977] 2 All E.R. 638, dicta of Ormrod, L.J. applied.

(2) Balogh v. St. Albans Crown Ct., [1975] Q.B. 73; [1974] 3 All E.R. 283, dicta of Stephenson, L.J. applied.

(3) Canada Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2)UNK(1974), 48 D.L.R. (3d) 641; 4 O.R. (2d) 585; on appeal (1975), 65 D.L.R. (3d) 231; 11 O.R. (2d) 167, referred to.

(4) Davy Intl. Ltd. v. Tazzyman, [1997] 1 W.L.R. 1256; [1997] 3 All E.R. 183, applied.

(5) Gordon v. Deputy Minister of National Rev. (Customs & Excise)(1990), 3 T.C.T. 5343; 44 C.P.C. (2d) 129, referred to.

(6) Jennison v. Baker, [1972] 2 Q.B. 52; [1972] 1 All E.R. 997, dicta of Salmon, L.J. applied.

(7) Jolly v. Circuit Judge of Staines County Ct., Jolly v. Jolly, [2000] 2 FLR 69, applied.

(8) Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd., [1964] Ch. 195; [1963] 3 All E.R. 493, followed.

(9) Star-Kist Foods Inc. v. Canada (Registrar of Trademarks)(1988), 20 C.P.R. (3d) 53; 18 C.I.P.R. 237, referred to.

Legislation construed:

Grand Court Rules, O.3, r.5(2):

‘The court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.’

O.45, r.5(1): ‘Where-

(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time . . .

then . . . the judgment or order may be enforced by one or more of the following means, that is to say-

. . .

(iii) an order of committal against that person . . .’

r.5(2): ‘Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.’

r.6(1): ‘Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.’

r.7(2): ‘. . . [A]n order shall not be enforced under rule 5 unless-

(a) a copy of the order has been served personally on the person required to do . . . the act in question; and

(b) . . . the copy has been so served before the expiration of the time within which he was required to do the act.’

(4): ‘There must be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served-

(a) in the case of service under paragraph (2), that if he neglects to obey the order within the time specified therein . . . he is liable to process of execution to compel him to obey it . . .’

(7): The relevant terms of this paragraph are set out at para. 35.

O.52, r.4(1): The relevant terms of this paragraph are set out at para. 38.

r.5: ‘Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order of committal against a person guilty of contempt of court.’

Courts-contempt of court-civil contempt-service of court order and penal notice on defendant to be dispensed with retrospectively under Grand Court Rules, O.45, r.7(7) only exceptionally-Rules require that defendant notified, within time for compliance, of possible consequences of non-compliance-if new time-limit set under r.6(1), no enforcement proceedings before expiry

Courts-contempt of court-civil contempt-court has inherent jurisdiction to punish contempt of own motion if appropriate-discretion to be exercised only if necessary to preserve respect for court”s authority or ensure due administration of justice

Courts-contempt of court-civil contempt-factors for consideration-court to consider nature of order and effect of breach, purpose of committal (coercive or punitive), whether apology offered, other parties” wishes, nature of proceedings (e.g. family proceedings, where public interest favours reconciliation), whether administration of justice undermined, and whether penal notice served on contemnor during time for compliance

In proceedings in the Grand Court concerning the custody and maintenance of a child, the respondent mother applied for an order that the appellant father file a statement of his means.

The appellant, a Cayman attorney, was informed of the court”s order but believed that compliance within 14 days as ordered was conditional on the case being listed for hearing shortly. On learning that the time-limit was absolute, he applied, a day before the expiry of the time-limit, for leave to appeal against the order and a stay of the order pending appeal, or an extension of time in which to comply. On the last day for compliance, a copy of the order was served on his attorneys (but not on him personally), and without a penal notice attached warning that non-compliance could result in committal proceedings.

The respondent applied immediately for an ‘unless’ order, giving notice to the appellant that she would seek a penalty if he did not comply with the order within three days. At the hearing of the summons, the Grand Court (Kellock, Ag. J.) held that since the appellant had not

applied for a stay or extension of time during the time for compliance, he was in contempt of court. That contempt was exacerbated by the appellant”s status as an officer of the court and by filing an unmeritorious appeal at such a late stage. The respondent did not seek the appellant”s committal, and requested the ‘unless’ order that she had previously applied for.

The court ordered that the disclosure be made within four weeks, and adjourned the hearing. The order was endorsed with a penal notice and served on the appellant.

The appellant complied with the order, but when the parties appeared for further directions, the judge ordered him to show cause why he should not be committed to prison for his original non-compliance. The proceedings were settled just before the appellant”s committal hearing. At the hearing, the judge considered a letter from him apologizing for any appearance of contempt, disclaiming any intention of disregarding the court”s order, and stating that he had merely followed legal advice. He gave evidence that the order had required extensive enquiries to be made. Discussions with his counsel prior to applying for leave to appeal had led him to believe that compliance with the order was not urgent, that his applications could be heard later, and that the respondent would not seek his committal. The respondent stated that all matters had been resolved to her satisfaction and she sought no order against him.

The court refused to accept the appellant”s apology, stating that the exercise of the court”s discretion to punish contempt of its own motion was necessary to prevent its authority being undermined. It dispensed, retrospectively, with service of the original order on the appellant and ordered that the appellant pay a CI$5,000 fine or be imprisoned for seven days.

On appeal, the appellant submitted that (a) under O.45, r.7(2)(b) and (4)(a), he could not be committed for contempt without service on him of a penal notice warning of that possibility before the time-limit for compliance with the order had expired; (b) service of the order with a penal notice should be dispensed with only exceptionally, and not retrospectively; (c) he had, in any event, complied with the order within the new time-limit specified by the court at the hearing of the respondent”s summons and apologized for the appearance of contempt; and (d) the court had no jurisdiction to order his committal of its own motion in the face of opposition from the party whom the original order was intended to benefit.

Held, allowing the appeal:

(1) Under the Grand Court Rules, O.45, r.7(2)(b) and (4)(a), before the court could order the committal of the appellant for non-compliance with its order, the appellant should have been served with a copy of the order with a penal notice attached. Although service could be dispensed with under r.7(7) retrospectively, that should be done only in exceptional circumstances. In this case, the appellant ought to have been put on notice before the expiry of the time-limit for compliance that failure to comply

might result in a penal sanction rather than, for example, a costs order against him. Furthermore, under O.45, r.6(1), the court”s order made at the hearing of the respondent”s summons had substituted a new time within which the appellant had to comply with its order for discovery, and thus, by r.5(1) and (2), precluded enforcement of the order under the Rules unless the new time-limit was not met (paras. 34–37).

(2) However, the court also had an inherent jurisdiction to punish non-compliance with its orders summarily, of its own motion, and without recourse to any party or to the Attorney General. The jurisdiction was to be exercised sparingly and only in exceptional circumstances, since it placed the court simultaneously in the roles of complainant, prosecutor and judge. Accordingly, its use was justified only when it became essential in order to preserve respect for its authority or ensure the due administration of justice. Respect for the court would, equally, in some cases be better served by forbearance than by the exercise of powers of contempt. A distinction could be drawn between non-compliance with prohibitory orders, e.g. non-publication orders, which would probably have resulted in significant harm when contempt proceedings were brought, and with mandatory procedural orders that...