6.18
Permission to apply for a final injunction
In
some cases, once the rights of the parties have been established,
there may be no need for an injunction as there is no evidence
that the loser would seek to behave in the future in contravention
of what the court has found. In such a case the court may
refuse an injunction but give permission to apply for one
in case it turns out in the future that there is indeed a
threat of the right being infringed.
As
to costs, the ordinary rules and practice apply and there
are no special rules.
6.19
Undertakings
An
undertaking is a formal promise given by a party to the court;
in form it is very similar to an injunction. However, when
an undertaking is offered, the judge has an important role
to play. He needs himself to explain to the ‘undertaker’ what
an undertaking is, what the consequences are of breaking
it and what the particular undertaking means. All of this
needs to be done in ordinary non-technical language. Having
done this, the judge should satisfy himself that the ‘undertaker’ has
understood. This is particularly important in cases like
harassment cases where there is a risk that the person giving
the undertaking may not be very well educated or is sometimes
of limited intellect. If the judge is not satisfied he should
refuse to accept the undertaking. The person giving the undertaking
should be required to sign the undertaking form before leaving
the court.
6.20
People against whom injunctions should not be made
In
general, an injunction should only be made against or an
undertaking accepted from somebody who is a party to the
action. They should not be made a party merely for that purpose
if there is no substantive claim against them. Sometimes,
of course, undertakings (through counsel) are given by solicitors,
but they generally relate to matters relating to the conduct
of the action and are not really within the scope of this
paragraph.
It is generally inappropriate to
make an injunction against (or receive an undertaking from)
a minor or somebody who is mentally ill (see Wookey
v W [1991] Fam 121). Inevitably, this may leave the
court powerless to help.
6.21
Damages in lieu of an injunction
There
are two situations.
a) The
court concludes that damages are an adequate remedy, refuses
an injunction on that ground and gives the claimant the
damages to which he is entitled at law. The case is then
simply an ordinary damages case.
b) The court refuses an injunction on
a discretionary ground and gives damages in lieu of the
injunction (a jurisdiction originally conferred on the
Court of Chancery by ‘Lord Cairns’ Act’).The county court
would appear to have jurisdiction to grant this (in origin
High Court) remedy under section 38 of the County Courts
Act 1984. For the principles involved, see Shelfer
v City of London Electric Lighting Co [1895] 1 Ch 287
and Jaggard v Sawyer [1995] 2 All ER 189.
It is probably in practice a fairly rare situation (1.
above is far more common) but can arise where, for instance,
the cause of action itself would not have entitled the
claimant to damages (e.g. breach of a restrictive covenant
where the parties to the litigation are, or one of them
is, a successor in title). The measure of damage may be
different from 1., see Snell for further detail.
6.22
Practice on an application
This
is set out in PD 25. Particular attention is drawn to:
a) practice
on applications made before issue of the claim form (paragraph
4.4);
b) applications by telephone (paragraph
4.5);
c) what the order must contain (paragraph
5.1), which is considered further below.
An
application will now almost always be heard in public, although
there will continue to be exceptional cases where in particular
applications without notice might need to be heard in private.
Practice may vary in individual courts as to whether it is
necessary to robe. The practice in the Central London County
Court is to sit unrobed (as is the practice of the High Court).
6.23
Drafting the order
See the requirements of PD 25. In
particular, the cross undertaking in damages must appear.
An interim injunction should be framed ‘until judgment’ rather
than ‘until trial’. Otherwise, it expires on day one of
the trial and, if the trial is long or judgment is reserved,
there may be difficulties.
Nowadays the injunction appears on
a separate (usually standard) form rather than as part
of a larger order. This form should as a matter of course
contain a penal notice if it is to be enforced by committal.
It is as well to check this if possible.
It is no part of the court’s function
simply to rubber stamp injunctions or undertakings drafted
by others. In each case the judge ought to consider whether
it is an order he is prepared to make or an undertaking
he is prepared to accept. He should be prepared to be vigorously
proactive. Vital to this process is consideration of the
ease or otherwise of enforcing the order if there is a
breach. Thus:
a) The
modern practice (endorsed by PD 25 para 5) is to formulate
the injunction in clear everyday language. In particular
the old forms such as ‘be restrained from doing all or
any of the following’ and ‘by himself his servants agents
or otherwise howsoever’ may be regarded as dead and replaced
by language such as ‘is forbidden from doing’ and ‘by himself
or through others’.
b) A well drafted injunction tells a
respondent precisely what it is he is (or is not) to do.
He should be able to read the order and have no doubt whether
he has complied or not. It is no service to anybody to
frame injunctions so that time and costs is taken up on
the application to commit in determining whether the conduct
complained of, if proved, comes within the injunction as
framed. Thus avoid at all costs ‘is forbidden from causing
a nuisance by smell at the premises known as. . . .’ and
say instead something like ‘is forbidden from frying fish
and chips at the premises known as the Golden Cod unless
the following regulations are complied with: (a) an extractor
hood is switched on at all times, etc etc.’
c) A mandatory order should state the
time within which the act is to be done. A reasonable time
needs to be given. For instance demolition of a building
may need some form of official permission or compliance
with regulations and cannot be done overnight. The relevant
time needs to be considered in argument with the advocates.
6.24
Freezing orders
Effectively
the jurisdiction of the ordinary county court is limited
to two situations:
a) preserving
the subject matter of the action; and
b) freezing assets in support of a judgement
(which can include an order for costs which have not yet
been assessed).
It
is not thought that 1. will raise any particular problems,
other than perhaps in some business cases the adequacy of
the undertaking in damages.
The
practice under 2. which evolved in a series of cases from
the mid 1970s, many of them in the Commercial Court or the
Court of Appeal, is strict and complex. It is a matter of
great seriousness on both sides. The making of an order is
a grave infringement of the respondent’s personal freedom;
the refusal to make such an order may deprive an applicant
of the fruits of his judgment. Unless the application is
made immediately at the close of the hearing it is (for obvious
reasons) usually made in the first instance without any form
of notice. It is a particular important example of the need
for full and candid disclosure. Most advocates who apply
for these orders know what is required and take great care
in preparation of the papers. (It is a good example of the
type of case where, as it is known that the court will scrutinise
everything closely, great care is usually taken). Standard
forms of order are annexed to PD 25 and should be studied
and followed closely.
The
practice ought to be that the papers, including the draft
order, are delivered to the court in sufficient time for
the judge to study them properly before the hearing. If this
has not been done then the judge should seriously considering
adjourning until he has been able to look at the papers properly
(see Memory Corporation v Sidhu [2000] 1 WLR 1443, judgement
of Mummery LJ at 1459). This kind of order should in no circumstances
be made ‘on the nod’.
6.25
Specialist statutory jurisdiction
In
the main, the general principles set out in this section
apply to these cases as well, but there are some detailed
differences and particular requirements. The following guidance
relates to domestic violence. The guidance relating to housing
injunctions is contained in paragraphs 14.54 et seq.
6.25.1
Part IV Family Law Act 1996
Part
IV of the Family Law Act 1996 came into force on 1 October
1997 following the recommendations of the Law Commission’s
Report, Domestic Violence and Occupation of the Family Home,
Law Com. No. 207 (HMSO 1992). It replaced the then existing
legislation in relation to personal protection orders and
broadened the scope and powers of the court. It is suggested
that the findings and recommendations of the Law Commission’s
Report should inform decisions that are made on applications
under Part IV and for this reason relevant extracts from
the Report are set out in the text.
6.25.2
Who may apply?
Orders
may be made between persons who are ‘associated’. This term
is defined in section 62 and will include cohabitants and
former cohabitants, same sex couples and relatives. The definition
does not include, ‘boyfriend and girlfriend’.
6.25.3
The relief available
Under
Part IV Family Law Act 1996 the court may make non-molestation
orders between associated persons, restraining the use and
threatened use of violence, intimidation, pestering, harassment,
or other specified forms of molestation. There is also power
to make orders relating to the occupation of a home that
is, was, or was intended to be a home shared by the associated
person. Occupation orders, as they are known, may exclude
one party from the share home, and its immediate vicinity.
There is provision for the attachment of a power of arrest
to both non-molestation and occupation orders.
6.25.4
What is molestation?
There
is no guidance in Part IV, nor any statutory definition,
as to what amounts to molestation. It is suggested that a
wide definition is appropriate, in line with that adopted
by the Law Commission in its report, Domestic Violence and
Occupation of the Family Home (Law Com. No. 207), the recommendations
of which report resulted in Part IV:
‘…Domestic
violence can take many forms…In its narrower meaning it
describes the use or threat of physical force against a
victim in the form of assault or battery. But in the context
of the family, there is also a wider meaning which extends
to abuse beyond the more typical instances of physical
assaults, to include any form of physical, sexual or psychological
molestation or harassment which has a serious detrimental
effect upon the health and well-being of the victim, albeit
that there is no ‘violence’ involved in the sense of physical
force. Examples of such ‘non-violent’ harassment or molestation
cover a very wide range of behaviour.
Common
instances include persistent pestering and intimidation
through shouting, denigration, threats or arguments, nuisance
telephone calls, damaging property, following the applicant
about and repeatedly calling her at her home or place of
work…The degree of severity of such behaviour depends less
upon its intrinsic nature that upon it being part of a
pattern and upon its effect upon the victim…’
6.25.5
The exercise of the court’s discretion
In
deciding whether or not to make a non-molestation order,
section 42(5) requires the court to look at all the circumstances,
including the health, safety and well-being of the applicant
and any relevant child. ‘Health’ includes mental as well
as physical health (section 63(1)):
‘…It
must always be emphasized that, whatever the causes of
domestic violence, the law should be concerned with its
consequences and in particular the need to supply adequate
protection for its victims. The law should also provide
an affirmation that victims do not have to put up with
violence, whatever the reason for its occurrence in the
particular case…’ (Law Com. No. 207)
6.25.6
Specific non-molestation orders
Section
42(6) provides that a non-molestation order may be expressed
so as to refer to molestation in general, to particular acts
of molestation, or to both. The terminology of the specimen
orders contained on the ‘tick box’ form of specimen orders
(see annex ) is such that on the face of it, it is not possible to make
an order to exclude the respondent from a property other
than the shared home. In theory this would mean that a significant
number of applicants would be denied the protection of an ‘ouster’ order,
that was available to them before Part IV Family Law Act
1996 was enacted. In practice, the problem should be addressed
by making a non-molestation order that specifically prohibits
the respondent from intimidating harassing or pestering the
applicant by, for example, going to his/her new home and/or
place of work.
6.25.7
Duration of orders
‘…Fixed
time limits are inevitably arbitrary and can restrict the
court’s ability to react flexibly to problems arising within
the family. In particular, it is important that non-molestation
orders should continue to be capable of enduring beyond
the end of a relationship, although in some cases, short-term
relief will be all that is necessary or desirable…Accordingly,
we recommend that non-molestation orders should be capable
of being made for any specified period or until further
order…’(Law Com. No. 207).
Section 42(7) provides that a non-molestation
order may be made for a specified period or until further
order. In practice, orders are usually made for a maximum
of 6 months in the first instance. Open-ended orders should
be made only in very exceptional or unusually circumstances.
(M v W (Non-Molestation
Order: Duration) [2000] 1 FLR 107)
Different
considerations apply to occupation orders and the length
of time for which an order may be made will depend upon under
which section the application is made. In
practice, applications for occupation orders are comparatively
rear.
6.25.8
Power of arrest
Section
47(2) makes it mandatory to attach a power of arrest to an
order made on notice if:
‘it
appears to the court that the respondent has use or threatened
violence against the applicant or a relevant child…unless
the court is satisfied that in all the circumstances of
the case the applicant or child will be adequately protected
without...’
The
presumption in favour of a power of arrest responds to a
need voiced in evidence to the House of Lords in the Committee
stage of the Family Homes and Domestic Violence Bill for
victims of violence to have the protection afforded by an
order with a power of arrest attached:
‘We
were impressed by the weight of informed opinion supporting
this…There are a number of advantages in this. A power
of arrest is seen as a simple, immediate and inexpensive
means of enforcement which underlines the seriousness of
the breach to the offending party. It was felt that threatened
violence should be included because it is wrong in principle
that women and children should have to wait to be injured
before the law can offer protection…’(Law Com. No. 207)
There
is a discretion to attach a power of arrest to an order made
without notice. Section 47(3) provides that the court may
attach a power of arrest if it appears that the respondent
has used or threatened violent to the applicant or a relevant
child, and there is a risk of significant harm to the applicant
or child, attributable to the respondent’s conduct, if a
power of arrest is not attached immediately.
The
discretion that applies under section 47(3) to attach a power
of arrest for a shorter period than the substantive order
when that order is one made without notice, applies equally
to orders that are made on notice. (See Re B-J (a child)(non-molestation
order: power of arrest))
A power of arrest should generally
be attached only to that part of the order that restrains
the use and threat of violence. A power of arrest should
not be attached to unspecified acts of molestation. (Hale
v Tanner [2000]2 FLR 879)
6.25.9
Undertakings
Before
Part IV Family Law Act 1996 came into force, most applications
for personal protection injunctions were disposed of by way
of undertaking. Part IV seeks to restrict the acceptance
of undertakings by the court. Section 46 provides that the
court must not accept an undertaking unless it is a case
in which, if it were making an order, it would not attach
a power of arrest. In other words, a case in which the court
was satisfied that the applicant would be adequately protected
without a power of arrest even though violence had been used
or threatened. A power of arrest cannot be attached to an
undertaking.
6.25.10
Applications without notice
Section
45 gives the court power to make a non-molestation order
or occupation order without notice to the respondent in any
case in which the court considers it just and convenient
to do so. Where an application is made without notice, the
affidavit in support must set out the reasons for asking
for an order to be made without giving the respondent an
opportunity to be heard. The affidavit should also address
the criteria to be applied by the court, namely, all the
circumstances, including:
a) any
risk of significant harm to the applicant or a relevant
child attributable to the conduct of the respondent if
an order is not made immediately;
b) the likelihood of an applicant being
deterred from pursuing the application if an order is not
made immediately; and
c) whether there is reason to believe
that the respondent is evading service and the delay in
effective service by alternative means will cause serious
prejudice to the applicant or a relevant child.
If
it is felt inappropriate to make an order without notice
to the respondent, but the matter appears urgent, an alternative
is to abridge time for service so that a hearing on notice
can take place within a shorter space of time than the requirement
for two clear days’ would otherwise permit.
Whilst
it is common in practice for non-molestation orders to be
made without notice, to make an occupation order requiring
the respondent to leave the shared home, or in any other
way restricting his/her use or occupation of the home without
him/her having an opportunity to be heard will be most unusual.
The circumstances would have to be very extreme indeed for
a draconian order of this nature to be made without notice.
A
non-molestation order made without notice can be made for
as long as the order would have been made had it been made
on notice, usually 6 months, or it can be expressed to last
until a date shortly after the return date. Practice varies.
The advantage of making the order last for, say 6 months,
at the outset, is that if as is usually the case the order
is not opposed, the cost of serving a second order personally
on the respondent is avoided. If an order made without notice
is made for a short period only, it should last long enough
to cater for any difficulties encountered in serving the
order on the respondent so as to ensure continued protection
for the applicant.
6.25.11
Enforcement by power of arrest
Where
there has been an arrest pursuant to a power of arrest the
respondent must be brought to a court of the same level that
made the order within 24 hours of the arrest. Only Sundays,
Christmas Day and Good Friday are excluded from the reckoning.
If the respondent is not brought to court within the required
timescale, or there has not bee personal service of the order
before the alleged breaches, the court has no power to deal
with a committal pursuant to the power of arrest.
6.25.12
Application for warrant of arrest
An
application for a warrant of arrest may be made at any time
after the respondent has been served with a relevant order
if the applicant considers that the respondent has breached
the order of part of it, provided that a power of arrest
was not attached to the order or to the part of it that the
applicant considers that the respondent has breached. Application
is made without notice to the respondent to the same level
of court on Form FL407 detailing the terms of the order alleged
to have been breached and how it is said the respondent is
in breach. An affidavit in support must be filed.
6.25.13
Committal for contempt of court in molestation, etc.
cases
Breach
of a non-molestation and/or occupation order, or an undertaking,
is a contempt of court and can be dealt with by committal
proceedings brought under CPR 1998 Sch 1 RSC Ord 52 or Sch
2 CCR 029. This procedure will only be followed:
a) where
an undertaking has been broken;
b) where a power of arrest was attached
to the term of the order breached but the police decline
to exercise the power of arrest;
c) where a power of arrest was attached
to the term of the order breached but the respondent was
either not brought before the court within 24 hours of
his arrest or not brought back to court following an adjournment
within the 14 days specified in r3.9A(4)(b)(I) of the Family
Proceedings (Amendment No 3) Rules 1997;
d) where there was no power of arrest
attached to the term of the order breached and the court
declined to issue a warrant of arrest.
Application
is made on notice to the respondent to show cause why he/she
should not be committed. The notice must list the breaches
alleged and there must be a witness statement in support.
6.25.14
The committal hearing
Whether
the respondent is arrested and brought to court under a power
of arrest, pursuant to a warrant of arrest or following issue
of an application to show cause, the procedure at the committal
hearing is the same.
In
the county court, any judge apart from a deputy district
judge may deal with the alleged breach of an order made under
Part IV.
The
hearing is an open court.
The
applicant and his/her solicitor should be present at the
hearing, and the respondent should have the opportunity of
legal representation. If the respondent is not legally represented
consideration should be given to adjourning the proceedings
to enable the respondent to instruct a solicitor. The court
will be mindful that if the breaches are proved, the respondent
may be deprived of his/her liberty.
At
the first hearing the following courses are open to the court:
a) to
determine after hearing evidence/admissions whether the
order has been breached and to decide upon the appropriate
penalty. This course in only likely if the respondent is
legally represented;
b) to adjourn the hearing to another
date and remand the respondent in custody for a maximum
of 8 days. If the remand is for more than 3 days arrangements
will have to be made for the respondent to be escorted
to prison, otherwise the respondent may be detained in
custody at the police station. The court will issue a remand
order in Form FL409;
c) To adjourn the hearing to another
date and remand the respondent on bail. There is power
to order sureties/recognisances but this is usually impractical.
There is no power to attach conditions to bail. The court
will issue a remand order in From FL409 and a bail notice
in Form FL412;
d) To release the respondent and adjourn
the hearing to a date no more than 14 days from the date
of the arrest. The respondent must be given at least 2
clear days’ notice of the adjourned hearing date.
When
it is possible to deal with the alleged breach of the order,
either immediately following arrest or at an adjourned hearing,
the procedure is as follows:
a) you
will need to be satisfied that the court had the jurisdiction
to make the order in the first place, that it was served
on the respondent before the alleged breach, and that the
arrest was lawful. For example, the arrest will be unlawful
if made pursuant to a power of arrest that was not attached
to the part of the order that it is alleged that the respondent
has breached;
b) You will need to know the detail
of each of the breaches alleged, and be sure that the respondent
understands them;
c) After the hearing evidence and/or
admissions, you will record your finding in respect of
each breach alleged and give reasons. The standard of proof
is the criminal standard, i.e. you must be sure (Dean
v Dean [1987] 1 FLR 517);
d) You must give a punishment for each
breach proved, having given the respondent’s advocate an
opportunity to address you on any mitigating factors, and
having heard the applicant’s views on the appropriate punishment.
A separate penalty should be imposed for each breach proved,
and these can be expressed to be concurrent or consecutive.
The maximum penalty is imprisonment for a term not exceeding
2 years and/or a fine not exceeding £2,500.
6.25.15
Sentencing for contempt
The
options are as follows:
a) an
immediate prison sentence of up to 20 years;
b) a new restraining order coupled with
a custodial sentence suspended on strict compliance with
the new order until it expires;
c) a new restraining order coupled with
an adjournment of sentence until the expiry of the new
order with permission to the applicant to restore for sentence
to be imposed before then and in the absence of an application
to restore the respondent to be relieved of his liability
to be punished for the breach;
d) a fine, on its own or in conjunction
with (1) or (2) above. In practice a fine is an unlikely
punishment as most respondents will be without the means
to pay;
e) a stern warning, but no penalty.
The
sentence should reflect the frequency and severity of the
breach, whether the respondent is an habitual offender against
court orders, and personal circumstances.
A first offender need not consider
that he/she will not be imprisoned. There has been a move
away from the tacit acceptance of ‘one free strike’. In Wilson
v Webster [1998] 1 FLR 1097, on the applicant’s appeal,
the Court of Appeal substituted a sentence of 3 months’ imprisonment
for that of 14 days imposed by the court below. The respondent
had broken an undertaking within 1 month of giving it by
attacking the applicant in the street, knocking her to
the ground and punching her in the face.
Similarly
in Neil v Ryan [1998] 2 FLR 1069 the Court of Appeal allowed
an appeal by an applicant against a suspended sentence for
the first breach of a non-molestation order:
‘…When
all is said and done, here was a woman in her own home, the
victim of a serious attach when she, not unreasonably, would
have believed that the court’s order had given her a measure
of protection from violence. If this sort of attack is not
me by an immediate committal to prison, the likely message
will be that the first attack in breach of an order of the
court in effect will attract no immediate consequences…if
that were the message then the protection which the court
order is meant to provide would be illusory. The whole point
of the order is that it should bite immediately, and that
the person in serious breach of it should understand that
there will be immediate punishment.’
However, more recently in Hale v Tanner [2000] 2 FLR 879 Hale LJ
took the opportunity to give some guidance as to sentencing
practice for breaches or orders in family cases. In that
case she emphasised that the approach would be quite different
from any other type of case, because of the ‘heightened
emotional tensions that arise between family members and
often the need for those family members to continue to
be in contact with on another because they have children
together.’ The judgement of Hale LJ also sets out the various
factors that the court should take into account when sentencing
for contempt for breach of a non-molestation order. These
include:
a) if
imprisonment was appropriate, the length of the committal
should be considered without reference to whether or not
the committal was to be suspended;
b) the length of the committal depended
on the two objectives in committal proceedings - marking
the court’s disapproval of disobedience to its orders and
securing future compliance;
c) the length had to bear some relationship
to the maximum of two years;
d) suspension was available in a much
wider range of circumstances than in the criminal justice
system;
e) the length of any suspension required
a separate consideration although it would often be linked
to continued compliance with the underlying order;
f) the
context in which the breach had occurred had to be borne
in mind, for example the emotions involved in family break
ups;
g) in many cases the court would have
to bear in mind that there were concurrent proceedings
in another court based on the same or substantially the
same facts. The court could not ignore those proceedings
and might have to take their outcome into account. A court
would not want to cause a contemnor to suffer punishment
twice;
h) it would usually be desirable for
a court to explain why it was making the order it was making.
6.25.16
Protection from Harassment Act 1997
By
creating a statutory tort of harassment the Protection from
Harassment Act 1997 creates a civil (and criminal) remedies
to protect individuals from ‘stalking’ which can cover a
wide range of anti-social behaviour. There is no requirement
for parties to be associated, unlike Part Iv Family Law Act
1996, nor even for there to be any relationship between them.
6.25.17
Prohibition of harassment
Section
1 of the Act prohibits harassment and provides that a person
must not pursue a course of conduct:
a) which
amounts to harassment of another, and
b) which he knows or ought to know amounts
to harassment of the other. It amounts to harassment of
another if a reasonable person in possession of the same
information would think the course of conduct amounted
to harassment of the other, i.e. it is an objective test.
2. Section
3 provides for a cause of action in damages for an actual
or apprehended breach of section 1. Damages may be awarded
for anxiety caused by the harassment and financial loss
resulting from the harassment.
3. The
right to apply for an injunction to restrain harassment
is not mentioned in the Act, but the court’s inherent jurisdiction
to grant an injunction is not affected (see Power to grant
an injunction, above).
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