Bruce v Wychavon District Council [2023] EWCA Civ 1389
Jack Smyth represented the successful council after the Court of Appeal upheld the 4th committal order made by the High Court in Birmingham. This long running case has been in Jack’s hands for the last seven years and concerns the large-scale importation and deposit of unauthorised waste.
The Court expressed concern about a growing practice whereby a contemnor elects to give oral evidence in defence of his position, having given no notice to the other side (or the court) of what he might say. Whilst Coulson LJ declined to rule on the point definitively as it was unnecessary to decide that point for the purposes of the appeal, he plainly deprecated the practice. He noted at paragraph 52:
CPR 81.7(3) provides that the court “may not give any direction compelling the defendant to give evidence either orally or in writing”. This clearly preserves the defendant’s right to remain silent and to decide not to give evidence at trial at all. But I do not think that it indicates that a defendant who does choose to give evidence has complete freedom of action as to how that is to be done, irrespective of the power to the court to control its own procedure. It may be that HHJ Kelly’s qualification to her order in the instant case…was intended to make clear that failure to comply would not prevent Mr Bruce from making an application to adduce evidence out of time at trial. But I do not read it as confirming that Mr Bruce could ignore the timetable set for evidence and insist on a right to serve written evidence or to give oral evidence by way of ambush at the trial. That point is reflected in Chapter 15 of Arlidge, Eady & Smith on Contempt, where at paragraph 15-55 the learned authors say that “the court by virtue of its power to regulate its own procedure is entitled to require respondents to swear affidavits or produce statements of witnesses as to facts upon which they wish to rely, in advance of the hearing”.
So: in future the courts are likely to be more robust when faced with a defendant to a committal seeking to ambush the other side by providing evidence for the first time on the day of trial when he could (and should) have provided it earlier in accordance with the court’s timetable. Just because the defendant’s liberty is at stake does not excuse his failure to obey directions!
