Orse Butler v Butler
Failure to observe the proper procedures for service is not necessarily fatal to the lawfulness of a committal order. In each of the two appeals against committal orders comma the contemnor complained of non-compliance with the rules of service. In the first, the order had been served by the court rather than served personally by the applicant. In the second the contemnor complained that contrary to order 29 rule 115 no order had been served on him and that it was on the wrong court form.
Held: dismissing the appeals. A failure to observe proper service procedures was not necessarily fatal to the lawfulness of the order; the court exercising it’s discretion under Section 13(3) of the 1960 Act, had to take into account the interests of those affected by the content and the need to maintain its authority. Since neither contemnor had suffered injustice the orders would stand despite the irregularities.
Lord Donaldson of Lymington said: ‘In all contempt cases, justice requires the court to take account of the interests of at least three categories of person, namely, (a) the contemnor (b) the ‘victim’ of the contempt and (c) other users of the court for whom the maintenance of the authority of the court is of supreme importance. The interests of the alleged contemnor require that he should have the right to be informed of the charges which he has to meet, to be advised and represented if he so wishes (subject to his being eligible for legal aid or otherwise able to finance his defence), to be given a full and fair opportunity of meeting those charges and, if found guilty of contempt of court, to be informed in sufficiently clear terms of what has been found against him. In all these cases the court has been concerned to ensure that these fundamental requirements are met in the way in which, particularly in the case of the county courts, they are intended to be and should be met. However, we have tended to overlook the fact that they may in some circumstance be met in other ways. Whilst this court should always be quick to identify and condemn any departure from the proper procedures, the interests of the victim and of maintaining the authority of the courts require that in deciding what use to make of its powers under section 13(3) of the Act of 1960 this court should ask itself whether, notwithstanding such a departure, the contemnor has suffered any injustice. It does not follow that he has, nor does it follow that the proper course is to quash the order. If he has not suffered any injustice the committal order should stand, subject if necessary to variation of the order to take account of any technical or procedural defects. In other cases it may be possible to do justice between the parties by exercising the court’s power under section 13(3) by making ‘such other order may be just.’ If the circumstances are such that justice requires the committal order to be quashed amongst the options available is that of ordering a retrial . .’
Lord Donaldson held: ‘In all contempt cases, justice requires the court to take account of the interests of at least three categories of persons, namely, (a) the contemnor (b) the ‘victim’ of the contempt and (c) other users of the court for whom the maintenance of the authority of the court is of supreme importance.’
Judges:
Lord Donaldson of Lymington MR
Citations:
[1993] Fam 167, [1992] 4 All ER 833, [1992] 3 WLR 813
Jurisdiction:
England and Wales
Cited by:
Dictum Approved – Nicholls v Nicholls CA 20-Dec-1996
The formalities of committal proceedings are to be strictly observed, but a breach of the formalities may be overlooked if it does not affect the justice of the case.
Lord Woolf MR considered the discretion given to a court to commit for . .
Cited – Re Yaxley-Lennon (Aka Tommy Robinson) CACD 1-Aug-2018
Need for clarity in Contempt Allegation
The defendant appealed from his convictions for contempt of court, being said to have broadcast details of criminal prosecutions despite orders to the contrary. He argued that any failure of procedure was fatal to the prosecutions.
Held: As to . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 21 May 2022; Ref: scu.624163