Local authority in contempt of court (JS v Cardiff City Council)
This analysis was first published on Lexis®PSL on 12 April 2022 and can be found here (subscription required). Owain Rhys James acted for the successful Claimant in the committal proceedings. The judgment may be found here. This article was written by Crash Wigley and Owain Rhys James.
Local Government analysis: The Honourable Mrs Justice Steyn DBE found the defendant local authority in contempt of court for its failure to comply with the terms of a mandatory injunction. The defendant had been required to complete future placement planning and produce a care and support plan for the claimant. The breach of the court order came against a background of breached undertakings due to the defendant’s longstanding difficulties in organising a placement suitable for the claimant’s needs. The judgment provides a useful overview of the approach in contempt proceedings when the contemnor is a public body. It includes a discussion of the matters which are relevant when considering breach, those which only go to penalty, and the question of whether a ‘threshold test’ applies. The public admonishment of the defendant also serves as a stark reminder of the importance of compliance with court orders. Written by Owain Rhys James, barrister and Crash Wigley, pupil barrister, both of Civitas Law.
JS (by his litigation friend) v Cardiff City Council [2022] EWHC 707 (Admin) (1 April 2022)
What are the practical implications of this case?
Steyn J rejected that there was a ‘threshold test’ that needed to be met before contempt proceedings could be initiated. The defendant had argued that in light of Mr Justice Chamberlain’s observations in R (Mohammed) v SSHD [2021] EWHC 240 (Admin) that ‘not every breach of an injunction must necessarily result in proceedings for contempt’, the court should consider first whether the contempt application is necessary or appropriate in light of the explanation provided by the defendant.
The court noted that contempt proceedings had been initiated by a party, this was not a matter in which the claimant needed permission to bring contempt proceedings, and it was not contended that the application was vexatious or abusive. Accordingly, the court should consider the application directly. Matters such as late compliance, apology or explanation for default fell to be considered in the context of penalty if a breach was found.
A penal notice, which would not typically be included on orders against defendant public bodies in Administrative Court proceedings, is not required in such cases for contempt proceedings to be brought.
When considering penalty, Steyn J cited R (Bempoa) v London Borough of Southwark [2002] EWHC 153 (Admin), where it was held that the gravity of a local authority’s contempt could be adequately marked by the ‘public humiliation’ of the court’s judgment, compared with a financial penalty which would only disadvantage local residents.
Accordingly, if a local authority has failed to comply with a court order, it is unlikely to escape being held in contempt of court by arguing that the alleged breach was excusable in the circumstances. Mitigating factors will be considered as the court considers the appropriate penalty, a key variable being the tenor of the court’s public criticism, and whether any sympathy is expressed for the defendant’s position. Defendants should bear in mind however that ‘any contempt of court is a matter of the utmost seriousness’.
What was the background?
The claimant was a young a man with ASD, severe communication and learning difficulties, ADHD and anxiety disorder. He attended a residential college specialising in education for young adults with complex additional learning needs, funded in part by the defendant. In July 2021, he brought a claim for Judicial Review (JR) on the grounds that the defendant had unreasonably failed to decide to fund an extension of his placement and had failed to implement a care and support plan under the Social Services and Wellbeing (Wales) Act 2014. Granting an application for expedition, His Honour Judge Lambert remarked that ‘The Claimant needs certainty in his life which has not been achieved previously. In the past the Defendant has failed in its duty to the claimant. The matter is now particularly urgent and the need for certainty has never been greater’.
The JR claim was settled and in the consent order, the defendant undertook to continue to fund the current placement until 31 December 2021, identify a list of placements it was willing to fund by 30 September 2021 and conclude future placement planning by 29 October 2021. However, as had been forewarned, the defendant’s delay meant that the current placement could not be extended into the new academic year, leading the claimant live at home with his mother, and the defendant also failed to make progress on the undertakings provided to find another placement.
A further JR claim was brought and in November 2021, HHJ Lambert granted an interim injunction for the defendant to complete future placement planning and produce a care and support plan by 21 December 2021. He stated he was appalled by the defendant’s conduct.
The JR claim was heard in a rolled-up hearing before His Honour Justice Keyser QC on 20 December 2021, a day before the deadline. The defendant conceded the claim. When considering the terms of the final order, the defendant argued it was impossible to finalise the placements and the care and support plan by the next day and requested to have until 29 April 2022. HHJ Keyser QC made an order allowing a short extension for compliance until 7 January 2022, and, in the event that the defendant breached the injunction, requiring its Director of Social Services to file an affidavit explaining why.
On 7 January 2022, the defendant sent an email enclosing a care and support plan and explaining progress that had been made in identifying two potential placements for the claimant, with others still being explored. The claimant initiated contempt proceedings.
What did the court decide?
Having decided that no threshold issue arose, Steyn J considered whether the claimant had proven that the order had been breached to the criminal standard. Though she acknowledged that ambiguous terms in an order should not be enforced by contempt proceedings, she rejected the submission that the requirement to ‘complete future placement planning’ was ambiguous. It required the defendant to ‘finish the process of determining the Claimant’s placement’. It had plainly been breached.
In addition, having failed to complete future placement planning, the defendant had further breached the order by failing to file an affidavit from its Director of Social Services. The court rejected the submission that it was relevant whether the defendant believed it had completed future placement planning. In light of Varma v Atkinson [2020] EWCA Civ 1602, it was not necessary to show that the defendant intended to commit a breach, merely that they intended to do or fail to do certain things which amounted to a breach. Intention to flout a court order was of course, relevant to penalty.
Steyn J rejected the claimant’s submission that the defendant had also breached the requirement to produce a care and support plan. A purported plan had been provided and the court was not in a position where it could fairly determine that the plan was unlawful.
The court was highly critical of the defendant’s conduct, both in light of the history of the case (the breached undertakings and the slow progress on a matter requiring urgency) and its failure to take court orders seriously, an impression reinforced by the failure to file and serve an affidavit made by its director. Steyn J said it was ‘frankly astonishing’ that no senior officer of the Council had given evidence, and that the claimant’s social worker was the only one to provide an explanation of the situation.
Upon handing down judgment, the Council extended an apology in open court to the claimant with a written apology to follow. No further penalty was imposed. The Judge was persuaded that it was appropriate to make a mandatory order as the placement sought by the claimant was the ‘sole justifiable course’ open to the court, applying R (Raja) v Redbridge London Borough Council [2020] EWHC 1456 (Admin).
Steyn J further accepted that it was appropriate that the Council pay the claimant’s costs on an indemnity basis, rejecting its submissions that costs should be assessed on the standard basis, in circumstances where it was ‘clearly right to mark the court’s serious dissatisfaction with the Council’s breach’.
Owain Rhys James is a barrister and Crash Wigley is a pupil barrister, both of Civitas Law.
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Court: Administrative Court (Cardiff), Queen’s Bench Division, High Court of Justice
Judge: Mrs Justice Steyn DBE
Date of judgment: 1 April 2022