Regulatory Team E-Bulletin – Regulatory Crime, Rogue Traders and Contempt Proceedings

Swindon Borough Council v Frank Webb t/a Protective Coatings [2016] EWCA Civ 152

Richard Shepherd was instructed for the prosecution, Swindon Borough Council, Jason Taylor was instructed for the defendant, Frank Webb t/a Protective Coatings, in this Court of Appeal authority relating to the proper procedure for the court to adopt in considering an application to discharge or purge a contempt of court under CPR 81.31.

Cited Cases

• CJ v Flintshire Borough Council [2010]
• Longhurst Homes Ltd v Killen [2008]
• Poole Borough Council v Hambridge [2007]
• Wood v Collins [2006]
• Harris v Harris [2001]
• Enfield London Borough Council v Mahoney [1983]
• Lightfoot v Lightfoot [1989]
• Johnson v Grant [1923]

Background

Frank Webb is a rogue trader undertaking driveway-type works. He was, after many years of behaving in an unethical manner, given a rogue traders’ ASBO via the Enterprise Act 2002. The conditions of the prohibitory injunction included a ban on ‘door-stepping’ homeowners, in Mr Webb’s case his targets were usually the vulnerable and elderly. After numerous breaches of the order and numerous warnings by the police and trading standards, committal proceedings were issued by the Council. At Swindon County Court in May 2014 the breaches were proved and Mr Webb was sentenced to four months custody for his contempt.

Discharge/Purge

After serving only eight days in prison Mr Webb returned to the court in a somewhat opaque fashion. Whatever his method of return, he was put before a Recorder (who didn’t hear the original case) and told to apologise. He did so, and was released. The Council wasn’t notified of the hearing in time and were unable to assist the Recorder in understanding the case.

The Appeal

The appeal was first listed in May 2015. Due to lack of court time the case was adjourned to March 2016. By this time Mr Webb had committed a number of further similar offences and was a serving prisoner. Therefore, the Council’s initial position that he should be returned to prison, was no longer pursued. Nevertheless, the Court of Appeal took the opportunity to clarify this unusual area of law.

What should be taken from the case?

• In an application to discharge or purge a contempt CPR 81.31 should ordinarily be followed;
• The party bringing the original proceedings should be given sufficient notice of the application and be accommodated in making submissions;
• Where possible, the judge hearing the original committal proceedings should hear the application to purge;
• The considerations applicable to an application to discharge are not directly analogous with that confronting the Court of Appeal in determining whether a sentence is unduly lenient;
• There is a difference between contempt for breaches of mandatory and prohibitory injunctions, the former has a coercive leaning, the latter, punitive;
• Judges hearing such application would derive assistance from the eight-point checklist set out in CJ v Flintshire Borough Council.

It is the suggestion of the writer that in circumstances where an individual has been found in contempt of court and has received a prison sentence in relation to it, the body bringing proceedings may do well to leave a copy of Webb on the court bundle.

Richard Shepherd