By Ashley Young And Sammie Jones-
A county court judge who jailed a litigant for contacting his lawyers overnight in the midst of cross-examination gave a ‘case study’ in how not to deal with contempt.
The judge sitting in Hughes Jarvis Ltd v Searle & Anor, delivered a scathing criticism against Her Honour Judge Melissa Clarke for her wrong judgement in jailing a litigant. The new judge decided to reopen a claim she struck out because of the contempt.
Neil Jarvis was jailed for breaching an instruction given at Oxford County Court after being warned not to communicate with any third party, including his legal advisers. However, Jarvis sent emails to his solicitors and counsel, and also spoke to a third party, in contravention of the instructions. Once discovered, he was remanded in custody overnight and his claim (and his defence to a counterclaim) was struck out the next day, with costs ordered on an indemnity basis.
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At the Court of Appeal, Lord Justice Leggatt said the action to remand Jarvis in custody was a ‘misuse of judicial power’. He clarified that the judge’s pursued a punitive objective rather than prevent the risk of further harm to the fairness of the case.
Leggatt LJ said the judge was required to take a ‘measured approach’ in the circumstances, but this was not adopted here.An appropriate punitive measure would have been to fine him, rather than completely strike out the case and jail him. The offending judge had ignored Jarvis’s counsel’s plea that it would not be possible for her client to obtain criminal legal assistance immediately, and that his imprisonment was not necessary. Jarvis had been reckless in defying the judge’s instructions, but jailing him for this was excessive, and a true abuse of power. Had the judge dismissed the case alone, it would not have been so bad, though the legal issue should be whether the breach itself compromised the fairness of the case.
Jarvis was remanded overnight without the judge hearing any submissions about the appropriate sentence.Judge Melissa Clark during the hearing in July 2018, said she had considered her actions and concluded that she may strike out the claim and counterclaim if it would be an ‘affront’ to the court to permit him[the litigant] to continue. She said at the time: I considered this carefully and I am satisfied that it would be an affront to the court to permit the claim and counterclaim to continue. The litigant, Mr Jarvis in re-examination by Ms Toman had changed his evidence on a point in cross-examination that morning from the one he had given on the same point in cross-examination the day before.
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It related to whether the likely financial consequences for Mr Jarvis personally and the claimant if he was ultimately unsuccessful in the trial. The previous day he had said that the claimant would likely not become insolvent, but reviewed his response the next day, stating the claimant would in fact become insolvent. His changed answer would on the face of it had no bearing to the case, a fine at worst should have be adequate punishment.
Lord Justice Patten rendered the judge’s decision on committal as being ‘both unjustified and wrong’. The court heard that the judge had made no explicit order to prevent Jarvis discussing his evidence and had not spelt out the consequences of any breach.
Criticised: Judge Melissa Clark Image: mauricejohnkirk.wordpress.com
Patten LJ, condemned Judge Clark as acting outside her remit and jurisdiction in dealing with the alleged contempt except as a breach of an order of the County Court. Pattel LJ said the judge ‘completely lost sight’ of the principles guiding contempt allegations, and Jarvis’s committal to prison overnight was ‘particularly unfortunate and a completely disproportionate reaction’.
It was established that the emails did not prejudice the trial, but the contact with a third party was treated differently, and had ‘infected’ his evidence to prevent a fair trial.
Patten LJ said that by striking out the claim and counterclaim, the judge ‘completely overreacted and made an order which cannot be justified’. The claim and counterclaim has now been re-instated, and will be transferred to the Central London County Court for directions before a new trial. The judgement is a rounded discrediting of Lord Melissa Clarke’s judgement, who needs to go back to the drawing board and revise her application of legal principles in the area of contempt of court.
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