Gunn & Launders v Khan (2020) EWCA Civ 1905 (Not on Bailii. Judgment on Westlaw. Only just come across it, via Legal Action)

This was an appeal by the landlord, Saakib Khan, of an order sentencing him to six months imprisonment for contempt of court for breach of an injunction. The injunction (still just about interim on the date of breach, as will become clear) was to prevent Saakib Khan from evicting or attempting to evict the tenant and from interfering with his quiet enjoyment of the property and from threatening him with violence or harassing, pestering, or intimidating him.

Mr Gunn, with aid of Nottingham Law Centre, had sought an injunction on an urgent basis on 15 May 2020, as Saakib Khan, his landlord had been attempting to unlawfully evict him, increasingly aggressively, since the start of the coronavirus lockdown. An ex parte interim injunction was granted, with a return date of 19 May. The order was expressed to be “effective immediately upon its contents having been notified to the [appellant] by personal service of the injunction upon him or by other means”, that is, in accordance with CPR 81.8 as it then was.”

Service was ordered to be by putting the order through the letterbox of 71 Holgate Road, Nottingham. This was the address for Saakib Khan that Mr G had been given for Mr Khan, it was given as Mr Khan’s address in the Land Registry and it was the address used by the Council and the police to contact him. The order was served on the same day. Ms Denton of Nottingham Law Centre tried to contact the landlord by telephone, and sent him a text notifying him of the hearing. In the call, Mr Khan was abusive.

ON 19 May Mr G, with Ms Launders – another tenant – and Ms Denton attended court. Mr Khan didn’t. The injunction was confirmed. Mr G and Ms L returned home

to find a locksmith changing the locks on their rooms and the appellant (Saakib Khan) present in the house. The appellant was removed by the police. As he was being escorted from the house, he said to the respondent, “Get out of this house.”

An application for committal was made the same day. This eventually came to hearing in November 2020. Saakib Khan did not file a witness statement, instead his solicitor filed an affidavit exhibiting documents showing Mr Khan’s address as 53 Wilford Road. Mr G had exhibited a similar number of documents showing Mr Khan’s address as 71 Holgate Road. Mr Khan did not attend the hearing.

Mr Khan’s counsel made two arguments. The first was procedural. He argued that the application was now subject to the amended CPR 81 that had come into effect on 1 October 2020, and that this applied to the whole application, including the service of orders back in May 2020, because somehow the change to CPR 81 had retrospective effect. So personal service was required unless the court had dispensed with it and details of such an order should be in the application. An order for alternative service could no longer be relied upon.

This was rejected by the Court below, and was again rejected by the Court of Appeal:

Rightly, in my view, when challenged Mr Collings QC (for Mr Khan) accepted that this point was not one that he could legitimately pursue with any degree of vigour . I regard his argument to have been entirely misconceived. There is nothing in the rule to suggest that it would apply retrospectively and negate any application that had been served prior to seeking committal, as in this case on 19 May 2020 two months before the statutory instrument that brought into effect the change of rules had in fact been laid.

The second argument was the on the evidence the court could not be satisfied to the criminal standard that Mr Khan was aware of the terms of the injunction order before 19 May.

The Court below had found an adverse inference in Mr Khan failing to give evidence. But primarily, found that the evidence of Mr G, Ms L and Ms Denton was unchallenged. The Circuit Judge found as fact that Saakib Khan

in April and May 2020 was seeking to evict the respondent and Ms Launders from their rooms at 53 Wilford Grove. Second, that he sought to do so by deception and then by force; specifically, there was no rational alternative explanation but that the three men who sought forcibly and unlawfully to evict the respondent and Ms Launders on 10 May did so on the instruction of the appellant. Third, the injunction order made by DJ Hale was served by Ms Denton on 15 May in compliance with the terms of the order. Fourth, that 71 Holgate Road was regularly used by the appellant as an address where official documentation would rapidly come to his attention. Fifth, on 18 May 2020 Ms Denton received a telephone call from the appellant, who identified himself, in response to a text message that she had left on a number rightly known to her as the appellant’s telephone number. During that telephone call Ms Denton told the appellant that there was a hearing the next day in relation to an injunction made against him by his tenants albeit that she did not explicitly specify the terms of the order to him. Sixth, whilst the respondent and Ms Launders were attending at court on the return date for the injunction, the appellant instructed a locksmith to change the locks on their rooms and went to the premises to facilitate it and that he was present as his instructions were being carried out.

The Circuit Judge further found that Mr Khan’s angry and abusive response to the text informing him of the injunction hearing date pointed to him having knowledge of the terms of the order, and, rather obviously, so did turning up to carry out an illegal eviction of the tenants on the date and at the time specified for the hearing. Taken all together, the evidence showed that Mr Khan had the order and knew its terms.

The lack of evidence from Mr Khan reinforced that conclusion. There was no positive statement that Mr Khan had not received the order or didn’t know its terms. The adverse inference drawn was that the reason Mr Khan had not given evidence was because he had no answer to the allegations.

But, the Court of Appeal concluded, the Judge had not reached his findings on Mr Khan’s knowledge of the order wholly or mainly on the basis of this adverse inference, as was argued by Mr Khan on appeal.

In my view, there can be no realistic argument that the evidence did not support the findings of fact that the judge reached or the conclusions that he then went on to make. His analysis of the facts is cogently expressed and sound. Added to this, he was entitled to have regard to the adverse inference as supporting the inferences he drew and correctly directed himself that, by itself this was insufficient to substantiate the case. His self-direction was impeccable and there was ample evidence from which to reach the conclusions that he did.

The last issue raised by Saakib Khan on appeal was the approach to sentence by the Judge below. Mr Khan argued that the judge fell into error by selecting the sentencing guidance for breach of a protective order as analogous, and by an ‘over-mechanistic’ approach to culpability and harm in scaling down the sentencing starting points and range. This argument was not pursued with vigour in front of the Court of Appeal…

In exchanges with the court, Mr Crowther QC conceded that there is an analogy between a breach of protection order insofar as the criminal offence is concerned, and the contempt of court in these circumstances, since he recognises that the treatment meted out to the respondent and Ms Launders was capable of causing alarm and distress and to constitute harassment. Nevertheless, making what good point he can out of what I may suggest is a bad situation, he submits that the situation would have been far worse if the locks had been changed in the presence of the respondent and Ms Launders.

The Court of Appeal dismissed the challenge to sentence.

I have come to the very firm conclusion that, bearing in mind the circumstances and the cynical disregard which the appellant had for the injunction and the court proceedings, though this was a stern sentence, it was not manifestly excessive. The deliberate breach of the terms of the injunction was serious. It had particularly serious consequences in that the respondent and Ms Launders would be rendered homeless during the time of the COVID pandemic. Nevertheless, the judge rightly reflected the impact of the COVID pandemic upon the prison population in reducing the sentence he would otherwise have handed down.

The six month sentence stood. Appeal dismissed.

Comment

Well done for swift action by Ms Denton of Nottingham Law Centre.

Let us hope that rent repayment order applications follow…

Oh, and if there are passages you do not want to read in a Court of Appeal judgment on one of your cases, this would be one:

In his oral submissions (counsel for Mr Khan – one of three! NL) initially sought to suggest that in some way the requirements in question nevertheless fed into the decision to be made at the hearing which took place following the coming into force of the new Part 81. I did not find it possible to understand his submission in this regard and, as my Lady said, in the event he did not press it. I agree with her that this aspect of the case was misconceived from the start.