James Fleck v Pittstown Point Landings Ltd

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 02 April 2020
• Neutral Citation: BS 2020 CA 33
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No. 131 of 2019
• Date: 02 April 2020

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Jon Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Roy Jones, JA

SCCivApp. No. 131 of 2019

Between

James Fleck

Appellant

and

Pittstown Point Landings Limited

Respondent

APPEARANCES:

Mr. V. Alfred Gray for the Appellant

Mr. N. Leroy Smith with Mr. Jonathan Deal for the Respondent

Bacon v. Jones Communications Limited [2018] 1 BHS. No. 51;mentioned

Deputy Commissioner of Taxation v. Gashi [2011] VSC 448; mentioned

Dhooharika v. Director of Public Prosecutions [2014] 5 LRC 211;applied

E.M.I. Records v. Cameron Wallace Ltd [1983] Ch. 59; considered

Evans v. Bartlam [1937] A.C. 473;mentioned

Howitt Transport Ltd and anor v. Transport and General Workers' Union [1973] ICR 1; considered

Lau Yee Ching v. Wong Tak Kwong [2006] HKCU 480; mentioned

Liverpool Victoria Insurance Company v. Zafar [2019] EWCA Civ. 392; mentioned

Morgan v. Carmarthan Corpn [1957] Ch 455; considered

Noorani v. Calver (No 2/Costs) EWHC (QB) 592; considered

Phonographic Performance Limited v. Fletcher [2015] EWHC 2562;considered

The Queen v. The Rt. Hon. Perry Christie and others; ex parte Coalition to Protect Clifton Bay [2017] 1 BHS J. No. 127; mentioned

Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17;considered

Civil Appeal — Committal proceedings — Contempt of court — Whether judge erred in refusing leave to counsel on record to withdraw and in continuing the proceedings in the absence of the appellant — Whether judge erred in treating the committal proceedings as unopposed — Whether judge erred in not giving weight or consideration to the appellant's filed affidavits before finding the appellant in contempt of court — Whether order committing the appellant to imprisonment for six weeks for contempt is unreasonably harsh in the circumstances — Whether order for the appellant to pay the respondent's costs on the indemnity basis is wrong principle

The Appellant appealed from the whole of an oral Ruling handed down by a judge of the Supreme Court on 3 July, 2019 at the conclusion of committal proceedings commenced by the Respondent to enforce a perpetual injunction obtained against the Appellant on 27 October, 2017. In his Ruling, the learned judge: (i) found the Appellant in contempt of court for breaching the injunction order for a second time; and (ii) committed him to prison for a period of 6 weeks; and (iii) ordered him to pay the Respondent's costs on an indemnity basis. The Appellant complained that the judge's finding of contempt was erroneous and the sentence unreasonably harsh in the circumstances.

Held: appeal allowed in part; grounds 1, 2, 3, 4 and 7 are dismissed. The judge's finding of contempt together with his award of costs to the Respondent on the indemnity basis are affirmed. The appeal is allowed on grounds 5 and 6. The 6 week custodial sentence for the contempt is quashed. The Appellant shall pay two-thirds of the Respondent's costs of the appeal on the party and party basis, to be taxed, if not agreed.

The process which the learned judge employed in sentencing Fleck following the finding of contempt was indeed flawed and unfair to Fleck. There was no distinct sentencing phase. After finding Fleck in breach of the Judgment Order, the judge then failed to give the contemnor the opportunity to file an affidavit which would have placed information personal to him before the court for purposes of his sentence. Nor did the judge even invite submissions from Mr. Gray on Fleck's behalf in possible mitigation of sentence.

Not only was the sentencing process unfair to Fleck, but the judge's sentencing judgment itself failed to convince us that imprisonment was the only option.

Although the judge's objective was to ensure that no further breach of the injunction by Fleck occurred, he failed to analyse (as required) the aggravating factors of Fleck's conduct which had satisfied him that the threshold for committal had been reached. In this regard, the mere fact that a previous breach had occurred did not necessarily mean that imprisonment was the only option. Nor did he consider for example, the possibility of increasing the level of the fine which he had imposed on the last occasion. Nor did the judge consider the option available to him under O.52 r. 6 of suspending the committal order for a further period on condition that further breaches of the Judgment Order did not occur.

Madam Justice Crane-Scott, JA

Judgment delivered by The Honourable

Introduction:

1 The appellant (“Fleck”) appeals from the whole of the oral Ruling of Hilton J., handed down (in Fleck's absence) on 3 July, 2019 at the conclusion of committal proceedings commenced by the respondent (PPLL). In the said Ruling the learned judge: (i) found Fleck in contempt of court for breaching his order of 27 October, 2017 for a second time; and (ii) committed him to prison for a period of 6 weeks. Fleck complains that the judge's finding of contempt is erroneous and the punishment unreasonably harsh in the circumstances. Fleck further appeals the order for costs whereby the judge ordered Fleck to pay PPLL's costs on an indemnity basis.

2 The verbatim transcript of the oral Ruling (located at Tab 27 of the Record) is extracted below:

“THE COURT: …The Court will not take much time with this matter. I will do an effective order later but my decision today, after hearing counsel for the plaintiff… there being no appearance of the first defendant and counsel of record of the first defendant indicating the lack of communication by that party with their firm since the last hearing… the Court finds that it has found on an earlier occasion that the Order made on that earlier occasion is unambiguous and plain, and the first defendant has been shown by the affidavit evidence and the sworn evidence by the witness for the plaintiff to be in breach of that Court Order and, again, is now determined by this Court to be in contempt of the Court Order.

On the earlier occasion, this Court would have penalized Mr. Fleck for his contempt of a Court Order by a fine, which fine was paid, which clearly acknowledges that the defendant knew he was in breach of the Order and the fine was paid.

At this stage, the Order again being breached, the Court has no evidence to the contrary to show that the defendant has any excuse for the breach and, having found the first defendant again in contempt of the Court Order, does not consider it appropriate to seek to penalize the first defendant by a fine but rather, to ensure no further breach of the Orders made by this defendant, I think it appropriate in this particular case, as a penalty for this subsequent breach, to have an Order made for the committal of the first defendant to Bahamas Department of Corrections for a period of six weeks from the date of his apprehension, or until this Order is lawfully discharged by application by him, if that is successful.

The Court also orders, having regard to the history of this matter and, in the Court's view, disrespect shown by the first defendant, not only to the Court but in respect to the Laws of The Bahamas, that this is a matter in which he will be ordered to pay costs to the plaintiff on an indemnity basis.

Before leaving this matter, the Court wishes to reiterate that it finds that in no way have the actions of counsel for the first defendant been in any way non-professional, and that the result of this action and the Court's present decision lays squarely at the feet of the first defendant.

That is the Order of the Court.

Mr. Smith, if you perfect the Order, I have not formally written it out, I will look at it and sign it.

Thank you, Mr. Gray, for remaining, I will now rise.”

3 The committal Order of 3 July, 2019 was subsequently perfected and filed on 6 August, 2019. The relevant portions of the Order, including relevant recitals, are as follows:

“UPON THE APPLICATION of the Plaintiff, Pittstown Point Landings Limited (“PPLL”) made by Notice of Motion (the “Notice of Motion”) filed herein on 19th February, 2019 for the Committal of the First Defendant, James Fleck (“Mr. Fleck”) to prison for disobeying the Order of the Honourable Mr. Justice Hilton dated 27th October, 2017 (“the Judgment Order”)

AND UPON READING the Notice of Motion, the Affidavit of Christopher L. Higgs filed herein on 31st January, 2019 and the other documents recorded on the Court's file as having been read ;

AND UPON THERE APPEARING BEFORE THE COURT (1) Mr. N. Leroy Smith of Higgs & Johnson as Counsel of Record for PPLL, Mr. Jonathan Deal with him, (2) Mr. Mario Gray of V. Alfred Gray & Co. (“Gray & Co.”) as Counsel of Record for Mr. Fleck and (3) Mr. Thomas A.E. Evans Q.C., Mr. Akire Nicholls with him having been instructed in the matter to lead Gray & Co.;

AND UPON CONSIDERING WITHDRAWAL APPLICATIONS MADE BY COUNSEL ON MOTION (each a “Withdrawal Application”) the Court (i) acceded to the certain Withdrawal Application made by Mr. Thomas A.E. Evans Q.C. and Mr. Akire Nicholls and permitted them to leave the at the outset of PPLL's application and (ii) denied the certain Withdrawal Application made by Mr. Mario Gray and directed him to remain present for the remainder of the proceedings;

AND UPON HEARING Mr. N. Leroy Smith and Mr. Jonathan Deal;

AND THE COURT BEING SATISFIED THAT Mr. Fleck is guilty of contempt by virtue of his having breached the terms of the Judgment Order by, inter alia, entering upon and crossing over the Runway (as that term is defined in the Judgment Order) in the manner detailed by the evidence of Christopher I. Higgs;

IT IS HEREBY ORDERED THAT:

• 1. For his contempt, Mr. Fleck shall be committed to Her Majesty's Prison, Fox Hill, The Bahamas in custody of The Bahamas Department of Corrections for a period of six (6) weeks from the date of his apprehension or until such time (if any)...